Because guardianship involves a profound loss of freedom and dignity, state laws require that guardianship be imposed only when less restrictive alternatives have been tried and proven to be ineffective. ore importantly, and of the alternatives below are less expensive and less time consuming for you and your family members. Less restrictive alternatives that should be considered before pursuing guardianship include these listed below.
Power of Attorney instead of Guardianship
A power of attorney is the grant of legal rights and powers by a person (the principal) to another (the agent or attorney-in-fact). The attorney-in-fact, in effect, stands in the shoes of the principal and acts for him or her on financial, business, or other matters. In most cases, even when the power of attorney is immediately effective, the principal does not intend for it to be used unless and until he or she becomes incapacitated. (For more on powers of attorney, click here.)
Health Care Surrogate instead of Guardianship
A health care surrogate is the person you designated in advance to have the power to make your medical decisions. Often people want one person with authority over their medical care and another person with authority over their finances. This can easily be accomplished using both a power of attorney and separate health care surrogate designation.
Representative or Protective Payee
This is a person appointed to manage Social Security, Veterans’ Administration, Railroad Retirement, welfare or other state or federal benefits or entitlement program payments on behalf of an individual.
Voluntary Limited Guardianship or instead of Guardianship
In some states this proceeding can be voluntary, where the person needing assistance with finances petitions the probate court to appoint a specific person (the conservator) to manage his or her financial affairs. The court must determine that the conservatee is unable to manage his or her own financial affairs, but nevertheless has the capacity to make the decision to have a conservator appointed to handle his or her affairs. And often, a guardianship can be limited to a particular scope based in individual need.
Revocable Trust instead of Guardianship
A revocable or “living” trust can be set up to hold an older person’s assets, with a relative, friend, or financial institution serving as trustee. Alternatively, the person needing assistance can be a co-trustee of the trust with another individual who will take over the duties of trustee should the older person become incapacitated.
Several planning strategies can help you and your family avoid having to request a guardian be appointed for you or a loved one. It starts with a consultation with an estate planning attorney to discuss which strategy would be best for your individual situation.