Elders, Courts and Guardianship

By 2030, the number of people older than 65 in the United States will exceed 71 million - double the number in 2000. This trend should be expected to affect courts in Texas, in particular probate courts, as guardianships and will proceedings should escalate accordingly.
All Ages Percent Growth 2010 through 2030: 27.8%
Child Percent Growth 2010 through 2030: 13.2%
Ages 18-24 Percent Growth 2010 through 2030: 20.7%
Ages 25-44 Percent Growth 2010 through 2030: 24.1%
Ages 45-64 Percent Growth 2010 through 2030: 23.3%
Elderly Percent Growth 2010 through 2030: 80.1%
Source: Texas State Data Center

So far that impact has not been noticeable on court statistics; OCA data indicate that over the last decade, the number of probate cases filed each year remained fairly stable at around 58,000 each year, increasing an averaged of 0.5 percent per year. (See p. 41 of the 2008 Annual Statistical Report at http://www.courts.state.tx.us/pubs/AR2008/AR08.pdf). Interestingly, probate cases are heard in most counties by the constitutional county court, whose judge is very unlikely to be an attorney (12% or 31/254 of such judges are licensed); contested matters may be transferred to district court. In the state’s largest counties such matters are heard in statutory probate court.

A guardian is a court-appointed person or entity (such as a local or state agency) that makes decisions on behalf of an incapacitated person, as appointed by a judge under Chapter 13 of the Texas Probate Code. The Guardianship Advisory Board at the Texas Health and Human Services Commission (HHSC) was established by the 75th Legislature in 1997, and has repeatedly advocated for statewide guardianship services to address the number of incapacitated individuals without family, friends, or funds who lack access to guardianship services and less restrictive alternatives. (For example, see their 2000 report at http://www.hhsc.state.tx.us/si/gat/images/guardianship12_2000.pdf.) Beginning to address that need is the Department of Aging and Disability Services Guardianship Program, which provides guardianship services, either directly or through contracts with local guardianship programs, to individuals referred to the program by either the Adult Protective Services (APS) or Child Protective Services (CPS) Divisions of the Texas Department of Family and Protective Services (DFPS).

In 2005, through S.B. 6, the Judicial Branch was brought more into this mix through the creation of the Guardianship Certification Board within OCA. Under Section 111.042 of the Texas Government Code and Rule III(a) of the Board's rules, the following individuals must be certified by the GCB in order to be appointed by a judge:
individuals, other than attorneys or corporate fiduciaries, who are private professional guardians,
individuals who provide guardianship services to wards of the Texas Department of Aging and Disability Services (DADS), and
individuals, other than volunteers, who provide guardianship services to wards of a local, county, or regional guardianship program.
Attorneys who provide guardianship services in a capacity other than a private professional guardian may need to be certified.

Hopefully rounding out this information, you may want to visit the Center for Elders and Courts, a new initiative at the National Center for State Courts.