New Braunfels Herald Zeitung, September 23, 1987, Page 9

New Braunfels Herald Zeitung

September 23, 1987

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Issue date: Wednesday, September 23, 1987

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All text in the New Braunfels Herald Zeitung September 23, 1987, Page 9.

New Braunfels Herald Zeitung (Newspaper) - September 23, 1987, New Braunfels, Texas Guardianship In guardianships, who’s watching the ward instead of the money? (Editor’s Note: America is aging, and its elderly are often victimized by the guardianship system that is supposed to protect them. For a year, the Associated Press examined the guardianship process for the elderly nationwide. This is part of the series detailing what the AP found ) By PAUL RECER Associated Press Writer HOUSTON (AP) - In the guardianship of the elderly in Texas, it s only the money that is checked closely. Guardians of even modest estates must post bonds and are required by law to give meticulous financial accountings of estates every year, though the courts are lax in enforcement . But the state’s probate courts devote almost no continuing attention to the welfare and health of the ward State law says an annual report on the condition of the ward should be filed, but this is virtually ignored by the guardians and seldom enforced by the courts In more than 75 files examined by The Associated Press, only 4 percent contained reports on the ward. The ward’s condition is the primary issue in the initial guardianship application Most judges require a doctor’s statement on the ward’s medical history, and the application lists the ward’s residence and the proposed guardian’s reasons for seeking an incompetency ruling But after that, the files are usually blank on the welfare of the ward Only rarely is there any hint ot the ward’s health, where the ward resides, or how the ward’s time is spent. These indications usually are from reported expenditures. None of the files checked included a prognosis for the ward’s possible return to competency Under the Texas guardianship system, according to Gladys Burwell, a Galveston attorney who specializes in the field, “The estate is being protected, but as to the personal welfare of the ward. I really couldn't say.” Wards who are in nursing homes, as are the majority in Texas, generally are well cared for, Ms Burwell said A separate set of government rules and regulations cover them. But the health and welfare of those staying with family or friends is seldom monitored bv the courts When abuses of the wards are detected, it usually is as a result of reports from doctors or from con cerned neighbors who call authorities, said Judy House, director of the adult protective services branch of the Texas Department of Public Welfare That is one reason some experts on Texas’ guardianship system have proposed establishing a program of court visitors. Under this system, a professional welfare worker would periodically visit each of the wards, check then-recent medical history and living conditions, and report back to the court, said Harris County Probate Judge Pat Gregory If the court visitor finds abuses or inadequate care, a judge could order a “show cause” hearing to determine if the guardian should be discharged and a new one found Thomas M Featherston Jr , a Baylor professor of law who heads a State Bar of Texas committee stu dying guardianships, said the cur rent statutes require guardians to file annual reports on the status of the ward, “but these are not detail ed ” And, Featherston said, such reports usually are not prepared because “there is no penalty for not doing it and there is no realistic en forcement procedure ” Tarrant County Probate Judge Pat Ferchill, who recently devised a checklist on the ward s personal status for guardians to fill out and mail back, said he already has received a gtxxl number of responses “Some people are intimidated bv having to file a formal report to the court and this makes it easier for them.” Ferchill said Procedures vary widely in counties By JENNIFER DIXON Associated Press Writer BROWNSVILLE AP) — Pencil marks dot the annual accountings in adult guardianship cases on file in Dallas County, as auditors for the probate judges doublecheck spending of the wards’ estates each year In Brownsville and probate courts in Texas’ rural counties, however, guardianships cases linger on the books without any accountings often the last entry is the order establishing the guar dianship There are no annual reports of how the wards’ money was spent or how the wards are doing. and no inventory of the wards’ estates “It is a pity, if money is involved, and they guardians) are spending that money, but what can we do here’”’ says Esther Cornejo. Cameron County deputy county clerk Mrs Cornejo’s feelings echo those of court of finals across rural Texas, who say they have too much to do and too little money to ensure guar (bans are follow mg state probate statutes The law requires an inventory of the ward’s estate HO days after a guardianship of the estate is opened Thereafter annual reports of the ward s status are required of guardians of the person and annual accountings are required from guardians of the estate, often the same person ‘The problem is that once they get the order they lose interest." said Gregg County Judge Henry Atkinson “They don’t want to pay the at torney" for filing the annual accountings But with the state’s strapped economy. Atkin son, like many others statewide can’t afford to add any personnel, much less someone to just monitor guardianships “If you put on an additional employee just for that purpose, you’d be scorned. “ he said In some of the state’s small counties, guardian ships cases are just a fraction of the caseload of the county judge, an elected position that docs not require a candidate to be an attorney Those judges also hear misdemeanor criminal cases, small civil lawsuits and other probate cases, and serve as the county’s chief executive of ficer and as chairman of the county commis stoner’s court Hill County Judge Charles Herd, who is not an attorney, does all those jobs with just one assis tant “Yesterday, I handled 50 criminal cases in court.” Herd said in June “We re spread pretty thin “There are so many duties on a poor old county judge, and his duties are so varied, if you work at it you could probably spend 18 hours a day work mg.’ he said In the larger counties probate judges hear guardianship cases and have enough staff to keep up with accountings In Dallas Counts all dins-probate judges have auditors, and in Tarrant County, both judges have an auditor and share a second person who helps with audits Auditors in those counties tally the annual accountings and send out letters when accountings are overdue A judge can remove a guardian for failing to fulfill the duties of office including failure to file accountings Not one of the state s 254 counties has a court in vestigator who makes visits and tries to ensure the information in the accountings truly reflects the status of the ward’s estate or well tieing said former Dallas County Probate Judge David Jackson now in private legal practice "Even though the law requires annual aecium tings, there is no way a judge can verify the truth of the statements iii there, other than to rely on tin affidavits attached ’ Jackson said Although the larger counties have tugger staffs Jackson said he thinks inequities slip by more easily in the big counties In a small county. Everybody knows everybody and everybody knows what evervbody is doing and they would know when someone is tie mg taken adv outage of Jackson said “Our guardianship laws are adequate he said “It s the people who enforce the law-, who are in adequate Another difference between the metropolitan and rural counties is the metropolitan judger in sistence on medical statements attesting to a ward s incompetence tiefore a guardianship can tx* opened Although the law does not r**quire medic.il statements for permanent guardianships only in cases in which the guardians gains limited powers some judges insist on physicians statements I arrant County Judge Pat E erchill said he won t establish a guardianship without the statement of a medical din tor or doctor of osteopathy In Dallas County probate judges routinely ap point an attorney to represent the proposed ward in a permanent guardianship proceeding but ap pointing what are known as ad litem attorneys is extremely rai e in rut al Texas The appointment is optional under the law in permanent guardianships I d sure hate to See a case where thev duln * have an ad litem said Dallas attomev Wayne Melton who has done such work Al DS patients may create new need for guardians By JENNIFER DIXON Associated Press Writer FORT WORTH AP) - A teacher hospitalized with AIDS quickly developed brain problems that affected his ability to speak, but didn t require intensive medical care The hospital contacted his family in Kansas, but they didn t want to br mg him home His elderly mother refused to come to Texas and care for the terminally ill man at his trailer home, and nursing homes wouldn’t accept him either So the hospital needing someone who could approve medical treatment for the 44-year-old man and handle his financial affairs, turned to the Tarrant County probate court to find a guardian Decisions about the care of aban doned AIDS sufferers may increasingly fall to probate courts, especial Iv since dementia has been included iii the list of the disease’s symptoms said Tarrant County Probate Judge Pat Ferchill This is the modern-day leprosy,” said Steven Sotman of F ort Worth, a doctor certified in internal medicine and infectious diseases Guardianships in Texas traditionally have been established for juveniles mentally retarded or men tally ill adults and the mentally in competent elderly, but Ferchill said he believes AIDS could create another dimension of guardianship especially if the disease spreads beyond high risk groups such as homosexuals and intravenous drug users and into the general popula Hon The federal Centers for Disease Control added dementia and emacia tion to Pneumocystis carinn pneumonia and Kaposi’s sarcoma ef fective Sept I as indicator sy mptoms for AIDS Studies indicate about Hit percent of AIDS patients have some degree of brain abnormality tiefore death but in only one of about 20 cases is dementia the main problem Sotman said Ferchill learned of the teacher s plight when the hospital’s manager of social services notified the court the man needed someone to handbills financial affairs and asked that a guardian be appointed According to court documents filed in Tarrant County, the patient s checks from the Fort Worth Indepen dent School District were tieing directly deposited into his bank but his salary ran only through September "His family lives in Emporia Kau , and does not want the respon sibility of caring for his financial needs.’’ a letter from the social ser vices manager said I feel strongly that (the patient* needs a guardian appointed to care for these needs ” Ferchill said he filed a petition seeking a suitable guardian because he believes it is his responsibility under the Texas probate code when the needs of a possible incompetent are brought to the court's attention A hearing was set on the petition “People fetus* to deal w copt that you may lose vt he said The greatest in vou'll become a bumbling they refuse to sign a power of attorney lf? for July but the man died before it that person Ferchill sa took place Ferchill said he foresees special responsibilities for the guardian of an AIDS sufferer I imagine guardians will have a difficult time finding a placement for them in a health care facility or whatever it may tie he said I believe there is a point in time when they do not need hospital services but they do need care services I think a guardian might meet up with some difficulty placing wards who do not need intensive medical care that a hospital can offer and in paying the enormous cost of this disease “ I imagine guardians will also have to do some negotiating, ad v(Hating with insurance companies to make sure they AIDS patients* do obtain the maximum tx-nefits for whatever coverage they do have An AIDS patient's medical bills can reach $40,000 to $50,000 from the time of diagnosis until death a span of usually a year Sotman said Most must be hospitalized once or twice between diagnosis and death but otherwise can tie cared for elsewhere, he said Under the Texas probate code residents can designate who they would want appointed guardian in case of incapacitation and also list those they would not want named A designation against someone prohibits a judge from ever appointing itll the col lur mind suit is th.* idiot .in < guardianship or Hunter Junction Village of Gruene New Braunfels. I> 629-4900 Closed Monday 10-6 Weekdays 10-8 Weekends A&B HEARING AID CENTER Courtyard Shopping Center 201-B IH 35 West - New Braunfels PHONE 629-1561 Inner Ear may be t*-  -- your answer •>. \    * Miracle-Ear* TWO YEAR WARRANTY line hut mg loss or do mug ti IHI Mf ARING AiO ADVERtlSED IN NATIONAL GtOGRAPHIC and Reader s Digest FREE HEARING TEST • All Types o* Hearing Aids •Audiological Evaluations • Telephone Amplifiers 'Earmolds 'Batteries 'Swim Plugs »Ear Protectors NEW BRAUNFELS ONLY HEARING AID OEFICi When you buy your Hearing Aid from u«, u>e will always be here to give you servttt Phone 629-1561 Mon thru Thur 9 30 5p m For An Appointment HENRI W. BOODEE M.D. announces the opening of his office THE NEW BRAUNFELS UROLOGY CLINIC for the Practice of GENERAL ADULT AND PEDIATRIC UROLOGY Including the Treatment of Impotence and Infertility 189 East Austin St. Suite 1°6    AA#1 New Braunfels. Tx 78130    625-1003 Office Hours by Appointment Guardianships designed to help incompetent adults BY PAUL RECER Associated Press Writer GALVESTON (AP) Guardianships are time consuming, expensive and sometimes complicated but experts say they can be the only way to assure an incompetent adult receives proper care and protection In the vast majority of cases, the need for a guardian is clear, since the proposed ward is in a nursing home or lied ridden Sometimes, the pro spectre ward recognizes the need for and accepts a guardianship ar rangement But in a relatively small number of cases the issues are not as clear It is principally for these cases that Texas guardianship laws include rules designed to protect the rights and welfare of w ards That's often the way the law works said Galveston County Judge Jerome Jones “ You impose extra, extensive steps to cover a very small percentage of cases where there c auld tx* abuses “ There are two fundamental tyjx-s of guardianships temporary or permanent and either can tx- for the protection of tho ward's person est ate or both \ temporary guardianship usually is granted because of an immediate need such as a medical emergency Jones said In temporary guardianship cases the judge is required to appoint an at torrn-y to represent the ward and sot .» competency hearing within M davs ward and any known relatives tot died by summons and a nota e stod on the courthouse wall ir permanent guardianships no in can tx* taken toward th* ward a hearing is held In tiles** i as«s ward and relatives are notified ami the notice is posted but the judge is out required to apjxunl an al tortx-y The ward however ittav inquest an attorney or the court may Cfiose to appoint on* Iii tai gel counties such as Dallas and I arrant judges ruutmeiv ap im lint ar attorney to rep res*-rn ,» * a rd I Hit in the smaller a ward rarelv is The are unt th* At issue is the ability of the ward to care for himself and his assets the fundamental questions of competen cy Iii a serious contest, both sides could present expert testimony in eluding medical opinion and citizens commenting on the behavior of the ward “It can get quite messy, said Gladys Burwell, a Galveston at torney specializing in the field With one stroke of the pen dx* judge can take fundamental civil rights from the ward and give the guardian control of the ward s life and financial affairs Jones and other judges say that if the question of competency is a close call, they generally will rule in favor of the ward A guardian has no days after the judge's ruling to file an inventory of the ward s estate, and then must file annual accountings By law. the guardian also must file an annual report on the ward's eondi don and welfare but an Al* survey of almost IOO guardianship files found this is almost universally ignored Most people are appalled at the amount of paperwork and court foes involved in even a simple guardian ship Ms Burwell said When you tell them what all is in volved most people will back off six* said The larger the estate dx* more complex dx* work becomes Court approval Is needed to sell anything from dx- estate ain! for the guardian to m.tk* systematic bank withdrawals to finance the day to day needs of dx- ward Every penny us**d must ta- accounted for a rule ^signed to prevent guardians from using fuixfs for any purr***- other than the ward s tx*rx-fit Jones said The system works however univ if the court cioselv monitors the guar (We the man dale potential wan counties »i rept esenied If the ward is paul by dx-« is able tie is sent at dx* Associated F than . * files happens I tie law a: not ire vaned* something" is slowdown betw« guardianship and turnev who claim is indigent lr aunt) And ll encouraged t hearing th ress survev indicated lh dx* > Im dianshtps arx! the Al* survev many are virtually i gnu rest or ar*- granted fit* ills' id >^<* rating a gu ship usually comes from dx* .tiMf most often is a tag expense < ourt !«*«*s set by statute (an run into thousands Jut mg a long guar dianship said Ms Burwell Ttie in dial appl u at Km costs $125 and each sale of property from dx- estate net* another $125 Postings are M2 .a mipetent ig about I les (ha then J(>nes sate usually a n those s*s-k the ward .oh t is mine ce? page Of pa lf < Copying of ft and some fli h *kjct testimony from , rest in a * ase dx* co*t VV« tilt! 3" ii all that Y(Hi vc got up to J J hundred an range I : ig lh* an al sari attorney > documents Guardians^! •I M r we tw a Texas Commerce Bank I H)\vntovv n N«‘w Braunfels During the Comal County Fair En Sept. 25th I obby ( I used During th** Parade Main Hank ail! 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