23
Jan

In January of 2019, the Office of Court administration released findings on initiative to enhance protections of incapacitated persons by implementing the Guardianship Abuse, Fraud and Exploitation Deterrence Program.  The Report can be accessed here.  The Report explains why guardianship reform is important, “A person who is placed under guardianship loses civil rights, personal decision-making power, and the authority to control their own money and assets. Those rights and powers are entrusted to a guardian to protect the person from exploitation– but this arrangement leaves the person under guardianship vulnerable to exploitation if not properly monitored.”  In addition, the Report justifies the new Guardianship Abuse, Fraud and Exploitation Deterrence Program explaining that:

• $4.9 billion in assets under court and guardian control in Texas.
• The population of Texans over age 65 is projected to double in size by 2030 to almost 6 million.
• 8% increase in guardianship during the last 5 years.  Specialized Statutory Probate Courts are in only 10 of the state’s 254 counties.
• In Texas’ remaining 244 counties, the county judge or county court at law judge presides over guardianship cases without sufficient resources to monitor cases.
• Over 21,000 of the state’s approximately 51,250 active guardianships reside in counties that lack resources to closely monitor these important cases.
• Review of 29,606 guardianship files found 41% out of compliance.  Located 3,390 deceased persons under court control.  Without proper monitoring, there is a high risk for exploitation and neglect.

The Office of Court Administration created the Guardianship Compliance Project to review guardianships in various counties to evaluate how effective the the courts have been in overseeing the guardianship cases they supervise.  The Project was tasked with the following:

• Review all guardianship cases to identify compliance and reporting deficiencies by the guardian
• Review annual accountings and well-being reports to spot fraud, neglect, and exploitation
• Provide accurate list of active and closed cases for judicial review
• Conduct research on location of guardians and wards
• Develop best practices in managing guardianship cases
• Initiate communication with guardian
• Assist court with compliance dockets
• Prepare report for the court on findings with recommendations
• Outreach and training for courts and clerks

The Project found that of the cases reviewed, 41% were out of compliance and of that 34% were missing annual reports, 40% were missing initial inventories (which likely means the fiduciaries were inadequately bonded), and 48% of the cases were missing annual accountings.  In addition, the Project provided a sampling of problems with specific cases as follows:

• $4 million estate– No reports or accounts ever filed.
• $1 million estate- No reports filed.
• Ward’s whereabouts unknown since 2008.
• Ward allowed to marry per court order- Trust disburses $90,000 annually at last report in 2013.
• Unauthorized ATM withdrawals of $20,000 and $40,000.
• $400,000 transferred, forged checks and additional $500,000 unaccounted for. Case currently in District Court.
• Lack of backup data, bank statements, receipts, check copies and invoices for the annual accountings.
• Deceased Wards located.

The findings from the Project appear to support those calling for guardianship reform in Texas.  It should be noted that Harris County was not one of the counties included in Project’s review.  Only one Statutory Probate Court was included, that being Bexar County Probate Court #1.  The other counties evaluated by the Project were Cameron, Lubbock, and Webb counties; and such counties lack a statutory probate court.