Are There Less Restrictive Alternatives to Guardianship

McNair Dallas Law

Man with dementia may need less restrictive alternative to guardianship

Although laws vary from state to state, every state requires that less restrictive alternatives be considered before invoking a guardianship. These might include such vehicles as limited guardianships, powers of attorney or assisted decision-making agreements.

Less restrictive alternatives to guardianships are available with the help of an experienced estate planning attorney.  Some important benefits of these alternatives is that they don’t require court approval or judicial oversight, and they are much less expensive.

Guardianship is a legal proceeding where a judge examines evidence of poor decision making to determine whether or not an individual lacks capacity to manage their own affairs.  Guardianship is a time consuming, expensive, and arduous process, says Kiplinger’s recent article entitled “Guardianships Should Be a Last Resort – Consider These Less Draconian Options First.”

An experienced elder law estate planning attorney can offer several less restrictive alternatives to guardianship.

Powers of attorney. Powers of attorney can be established for medical or for financial decisions. A second set of eyes ensures that financial decisions are well-considered and not harmful to the individual or his or her estate. A medical power of attorney can allow an agent to get an injunction to protect the health and well-being of the subject, including by seeking a determination of mental incapacity. A power of attorney for health care matters gives the agent the right to make medical decisions on behalf of the subject if or when they are unable to do so for themselves. Unlike a guardianship, powers of attorney can be canceled when they are no longer needed.

Assisted decision-making. This agreement establishes a surrogate decision-maker who has visibility to financial transactions. The bank is informed of the arrangement and alerts the surrogate when it identifies an unusual or suspicious transaction. While this arrangement doesn’t completely replace the primary account holder’s authority, it creates a safety mechanism to prevent exploitation or fraud. The bank is on notice that a second approval is required before an uncommon transaction can be completed.

Trusts. These estate planning documents let people map out what will happen in the event they become incapacitated or otherwise incapable of managing their affairs. Trusts can avoid guardianship by appointing a friend or relative to manage money and other assets. A contingent trust will let the executor manage assets if necessary. For seniors, it may be wise to name a co-trustee who can oversee matters and step in should the trustor lose the capacity to make good decisions.

Limited guardianships. A limited guardianship takes away an individual’s right to make decisions, just as full guardianships do, but they are specific to only some aspects of the person’s life. A limited guardianship can be established to manage an individual’s finances and estate or to control medical and health care decisions. These types of guardianships still require court approval and must be supported by a showing of incapacity.

These less restrictive alternatives to Guardianship can only be put into place with proper estate planning.  Contact our office to get started today.

Reference: Kiplinger (July 7, 2022) “Guardianships Should Be a Last Resort – Consider These Less Draconian Options First”

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