Guardianship and Alternatives: Exploring the Options
Once a person reaches the age of 18, they are guaranteed certain civil rights under state and federal law. These rights cannot be taken away by parents, support coordinators or social workers. It’s an exciting time for some people with a disability as they gain the opportunity to explore their independence.
However, not every person
who reaches the age of majority will have the mental capabilities to make decisions that are in their best interests. While many parents of children with special needs will consider guardianship first to take care of their child, there are alternatives worth exploring before taking such a major leap.
Alternatives to Guardianship
Guardianship has far-reaching implications. Ergo, the court considers it a measure of last resort when no alternative means of intervention is feasible. The following are some of the options to guardianship that parents can consider.
An existing circle of support can be ideal when the disability is not severe and the person can make most choices on their own. It is an informal decision-making assistance mechanism that relies on family and close friends. If the person is open to the opinions of their support circle and can be convinced to make prudent decisions, there is little need to pursue a more formal process. This avenue is, however, not practical for those living with a significant developmental disability.
A power of attorney (POA) is a legal mechanism through which a third party (referred to as an attorney-in-fact) is granted authority to make decisions on behalf of another person (the principal). A POA is considered durable if it remains in force even after the principal is incapacitated. A durable POA (DPOA) can vary in scope. It’s important to note that the DPOA does not take away the principal’s power to continue making their own decisions. The principal can revoke a DPOA in writing anytime they choose. A DPOA is automatically revoked on the death of the principal. A DPOA can also be specific—e.g., a health care DPOA, an education DPOA or a financial DPOA.
A representative payee (RP) is an agency or individual authorized to receive and manage government benefits on behalf of the payee/recipient. To authorize an RP, you must complete the requisite paperwork and notify the Social Security Administration (SSA). The government agency oversees an RP in much the same way that the court supervises a guardian. The RP receives the beneficiary’s monthly SSA payment and must document how the funds are used for the recipient’s benefit.
An advance health care directive is usually applicable to the elderly or those afflicted by a condition that leads to a steadily deteriorating ability to make choices. The advance directive details who and how your medical rights will be exercised when you can no longer make the decisions. A living will is an example of an advance directive and comes into force in the event of terminal illness, a perpetual vegetative state or the terminal phase of a health condition. A health surrogate is another example of an advance directive. The designation must be signed in the presence of at least two witnesses. The surrogate can make medical decisions, access health records and apply for the individual’s benefits. The surrogate designation only comes into effect when the treating doctor decides the individual is incapacitated.
A trust is a legal arrangement in which a person(s) or institution is charged with managing an asset for the benefit of another party. The three parties to a trust are the settlor (person who sets up and funds the trust), the trustee (the person(s) or institution managing the assets) and the beneficiary (the person(s) for whose benefit the trust has been established). Trusts can be revocable or irrevocable.
- Revocable trust (or living trust): The trust is revocable as long as the settlor is alive. The settlor is free to move assets into and out of the trust. They can also alter the terms as they relate to trustees and benefit distribution. However, a living trust becomes irrevocable once the settlor dies. The advantage of a revocable trust is flexibility. Its major drawback is that it limits the beneficiary’s access to government benefits such as Supplemental Security Income (SSI), Medicaid, public housing and the Supplemental Nutrition Assistance Program (SNAP).
- Irrevocable trust: An irrevocable trust cannot be altered once it is established (though some states such as Florida provide for exceptional circumstances under which the trust can be modified). Irrevocable trusts are favored when the settlor wants to provide for the long-term care of an elderly person or a disabled child. For individuals with disabilities, a special type of irrevocable trust known as a special needs trust is set up to protect the person’s eligibility for government benefits.
Guardianship is the process by which the court determines an individual (“the ward”) has questionable ability to make decisions and therefore assigns some of the individual’s rights to a third party. Guardianship seeks to protect the person’s property, welfare and health. The process leads to the selection of either a guardian or a guardian advocate.
Guardian advocate: Guardian advocacy is limited to people with specific developmental disabilities—that is, autism, retardation, cerebral palsy, spina bifida and Prader-Willi syndrome. The individual must lack the capacity to make only some but not all decisions necessary for them to care for themselves and their assets. As a less intrusive form of guardianship, the court does not need to make a determination of the ward’s incapacity.
Guardian: People who are eligible for guardianship include those with dementia, severe developmental disability and any condition that prevents them from normal function. Unlike guardian advocacy, the process for establishing guardianship is rigorous and hinges on determining the ward’s incapacitation based on expert opinion.
Depending on the court’s evaluation of the individual and their circumstances, the court may appoint a guardian of the property (responsible for delegated property rights), a guardian of the person (responsible for delegated personal rights) or a guardian of both (responsible for delegated property and personal rights). The person appointed by the court may be a family guardian (a relative or close friend of the ward), a professional guardian (paid by the ward’s assets) or a public guardian (if available).
A guardianship is terminated when the ward’s rights are restored, the ward cannot be traced, the ward’s assets have been exhausted (applies to guardian of property only) or upon the death of the ward.
Talk to FamilyVest
This write-up does not seek to cover all aspects of guardianship and its alternatives. As rules may vary by state and county, it is important to seek clarification from an expert on what is most applicable in your circumstances. If you seek additional guidance. Let’s Talk!