Guardianship is a court arrangement where a judge appoints someone to assist in managing an individual’s healthcare and financial affairs when the individual is no longer able to do so on their own. Guardianship is divided into two categories that deal with different aspects of the individual's needs. The first category allows the guardian to oversee the ward’s daily care, Guardianship of the Person. The second category grants the guardian power to oversee the ward’s personal and home property, Guardianship of the Property. Usually, people who require guardians are individuals who may have neglected to engage in advance estate and care planning.
The guardian could be a family member or the court could appoint an independent person. The court then supervises the guardian after they have been appointed. Guardianship appointments can be time-consuming and costly with prolonged legal fees. However, the good news is that guardianship is preventable. There are a few alternatives to guardianship that you can explore with early and proper planning. The following are potential alternatives to guardianship that should be widely considered.
Obtaining a Representative Payee as Alternative to Guardianship of the Property
If someone receives government benefits like Social Security, but they cannot manage the money on their own, the Social Security Administration can grant an individual to be appointed to receive the funds on behalf of the incapacitated individual. Social Security designates this person as a representative payee. The payee is required to use the funds to pay for the individual’s expenses and report the expenses to the agency. The payee must give an account to Social Security for how the money was spent. If you believe this is necessary for you and your family or loved one, you can do this by contacting Social Security and completing an interview. After completing the interview, you may be approved and be appointed a representative payee. Becoming a representative payee may avoid the need for a Guardian of the Property.
Obtaining Durable Powers of Attorney as An Alternative to Guardianship of the Property
A Power of Attorney (POA) is a legal document used to plan ahead of time. A POA allows one person (called the principal) to appoint one or more other people (called agents) the right to make health and/or financial decisions for them. Elders usually appoint an adult child as their agent as their mental and/or physical health deteriorates. In order to appoint an agent, the principal must have the capacity, at the time they choose who they want to act as their agent and when they sign the document. A POA is significantly less expensive and less time-consuming than a guardianship hearing. Having a Power of Attorney in place could prevent the need for a Guardian of the Property to be appointed.
Acquiring a Health Care Proxy as An Alternative to Guardianship of the Person
Similar to a Power of Attorney, a Health Care Proxy (HCP) is a document used to plan early. An HCP allows for an individual, with capacity, to appoint another person that they trust to make healthcare decisions for them. The principal will choose one person who can serve as their agent. An HCP, along with any other medical directives, will allow the principal to state their health care wishes early on. Although the HCP can be signed at any time, the HCP is only effective after two doctors decide that the principal is not able to make decisions on their own. Having a health care proxy in place could obviate the need for a Guardian of the Person.
Trusts And Estate Planning as An Alternative to Guardianship of the Property
A third alternative to guardianship is to execute a trust. A trust is a legal contract between three parties – the grantor, the trustee, and the beneficiary. A trust can serve as a means for property management. Having a trust can sometimes avoid having a Guardian of the Property because the trustee can effectively manage your property, instead of a guardian.
For disabled individuals or individuals planning for disability, you can create a First Party Supplemental Needs Trust or a Third Party Supplemental Needs Trust. These types of Trusts allow you to protect your assets while still being eligible for certain government benefits. Certain supplemental needs trust may need the court’s approval before being established. Each of these trusts has nuances that should be discussed with an estate planning or elder law attorney.
Joint Checking Accounts as An Alternative to Guardianship of the Property
A fourth alternative to guardianship and property management is by setting up and maintaining a joint account with another person. You can also add a person to the account for convenience sake only. By adding another person to the account, it will allow the other person to pay the bills and be an alternative to a guardian of the property.
Assistance with Care Management As Alternatives to Guardianship
If someone requires limited assistance, they may be able to use a case management tool instead of a guardian. They would create a plan that would allow others to assist and support the individual with the specific needs they may have while also allowing the individual to function independently in the areas they are able to. For instance, Adult Protective Services (APS) can provide case management without the need for a guardian. APS would appoint a case manager who can provide assistance with different needs like obtaining and recertifying for Medicaid, assuring proper living arrangements, monitoring safety, managing financials like social security benefits, and providing heavy-duty cleaning services.
How can an elder law or guardianship attorney help?
Guardianship is an expensive and, at times, cumbersome and complicated process. It is very possible to avoid guardianship by using any of the above ideas or resources. We can help you avoid guardianship. If unavoidable, we can also help you petition for guardianship. To learn more about the legal process of seeking guardianship it’s best to consult a lawyer.