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Alternatives to Guardianship

Clients often seek to initiate guardianship proceedings because they can’t see any other way to help a loved one who is struggling to care for themselves or manage their finances.

Alternatives to Guardianship

Clients often seek to initiate guardianship proceedings because they can’t see any other way to help a loved one who is struggling to care for themselves or manage their finances. However, guardianship is an extreme measure. Because it strips someone of their rights, courts are reluctant to grant guardianship if alternative measures would work under the circumstances.

At Brady Cobin Law Group, we help clients explore alternatives to guardianship to determine the best available options to meet their needs. Often, we can develop a plan combining alternative measures to provide for care without resorting to guardianship. The earlier you begin the planning process, the more options you will have available.

Financial Assistance

There are three primary tools we use to help adults who need assistance managing financial affairs, although we have many other options available as well.

Durable Power of Attorney

Someone who is mentally competent but wants to be able to receive help with money matters in the future can execute a durable power of attorney authorizing a person they trust to pay bills, manage accounts, and help with other financial issues. A power of attorney grants an agent the power to make decisions on behalf of another, but unlike guardianship, it does not take away authority from that individual. The power granted can be very broad or very specific. It can take effect immediately or “spring” into action when the client is declared incompetent.

Social Security Representative Payee

If someone receiving benefits from the Social Security Administration (SSA) is not able to manage the payments, the SSA can designate a representative payee. That person or organization has the responsibility to ensure that the benefits are used to meet current needs and save for future needs.  

Special Needs Trust

A special needs trust holds funds for someone with mental or physical disabilities (that person is referred to as the beneficiary.) A trustee manages the assets in the trust and provides funds to the beneficiary as needed. 

If the beneficiary receives Supplemental Security Income, Medicaid, or other benefits that are only available to those with limited means, having funds in the trust enables the beneficiary to make purchases without interfering with program eligibility. Trust funds could be used to provide a variety of supplemental services or goods, such as clothing, extra medical equipment, electronics, or travel experiences.

Health Care Assistance

Advance health care directives provide an effective means to provide for physical and mental health care needs. However, these directives need to be implemented while an adult is still legally competent.

  • A health care power of attorney authorizes someone to make medical for someone who is unable to make or communicate their own decisions, similar to the power granted in a financial power of attorney.
  • A living will document provides advance instructions to medical professionals about the type of care the signer wishes to receive for end-of-life care.
  • An advance instruction for mental health treatment is a psychiatric advance directive that allows individuals to specify treatment preferences for mental health care and appoint an agent to make mental health treatment decisions on their behalf

Family and community support systems also offer options for individuals who need help with self-care so that guardianship is not necessary. For instance, home health agencies can assist with cooking, cleaning, and bathing.

Estate Planning Attorneys Can Develop a Plan to Avoid Guardianship

To avoid the expense and delays associated with guardianship proceedings, it is best to plan ahead. Illness or injury can strike at any age, regardless of your health.

A thorough estate plan from the experienced team at Brady Cobin Law Group, PLLC will include alternatives to guardianship and other measures to protect your autonomy and your family’s future. We invite you to contact us today for a confidential consultation to learn how we can assist.

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