If you are considering the possibility of pursuing guardianship for a loved one, there are a few alternatives that can be considered first before taking such drastic measures. Although circumstances are never the same, some of these alternatives can still prove beneficial even if it is just to allow the future guardian to become more acclimated and comfortable before jumping right into guardianship.
Assign Power of Attorney
The simplest way to avoid guardianship is to execute the necessary powers of attorney, namely a Durable Power of Attorney and a Health Care Power of Attorney. These documents are put into place to ensure that someone is granted the authority to act on your behalf. A guardianship grants very similar authority to that of a power of attorney, the main difference is the individual using a Power of Attorney was granted that power by the “grantor” and the Guardian is granted the power by the courts. A durable power of attorney avoids the need for a Guardian of the Estate, meaning the individual who was granted the power has the authority to handle all the necessary financial matters for the Grantor, including paying bills, contracting for care services, and handling investments, etc. The health care power of attorney avoids the need for a guardian of the person, as the HCPOA can make all of the necessary medical decisions when someone can’t make them for themselves any longer. The combination of these two documents depends on the grantor being competent, and if guardianship is being considered, it may be too late to implement a power of attorney or other legal documents – pre-planning is important.
Become a Representative Payee of Social Security Benefits
Another option that may help avoid guardianship is to serve as the Representative Payee of Social Security Benefits. Oftentimes, in cases where assets may be limited (or in abundance for that matter), simply applying to become the representative payee with the Social Security Administration may help create a situation where those funds can then be accessed and used to provide care. If a beneficiary of SSI or SSDI is unable to manage their benefit, a representative payee is appointed by the SSA to receive and manage those benefits upon the showing of medical evidence (such as a signed physicians note) explaining their opinion that an individual lacks the ability to manage their funds. Since the beneficiary of SSI/SSDI does not need to be declared incompetent to have a representative payee appointed, this simple process can be a good alternative to guardianship.
Create a Special Needs Trust
Lastly, a Special Needs Trust can be a good alternative to guardianship. As we have discussed in previous articles, Special Needs Trusts are set up to benefit a person with a physical and/or mental disability. A properly drafted SNT can allow a disabled person to maintain their government benefits and have additional funds available to supplement their care and needs. While the disabled individual will never have any authority over or access to these resources, the trustee who is appointed can ensure that all government benefits are retained and the SNT itself is providing for the disabled individual appropriately. Given the trustee/ beneficiary relationship created with an SNT, a guardian of the estate can be avoided in many cases as the trustee is already in place to manage the finances and resources of the disabled person.
An Experienced Attorney Can Help with Guardianship Alternative Considerations
No matter if you are considering guardianship for an elderly parent, or a disabled adult child, these alternatives can and should be explored before seeking guardianship. Reach out to one of our attorneys to discuss if these alternatives are right for you. Call us or contact us online for a confidential consultation.