Trying an alternative to guardianship can be important for several reasons. First, it prevents a court from ruling that someone is “incapacitated,” which carries with it a stigma and can be hard to undo. Second, it puts the person in the driver’s seat. Third, it is much less expensive and time-consuming. There are less restrictive options, such as supported decision-making, power of attorney, or revocable trusts that could be a better fit.

What Is Guardianship?

Every adult is assumed to be capable of making his or her own decisions unless a court determines otherwise. If an adult becomes incapable of managing their person or property, the court may appoint a guardian. The standard under which a person is deemed to require a guardian differs from state to state. The standard in New York is a high standard of clear and convincing evidence.

Guardianship is a legal relationship between a competent adult (the “guardian”) and a person who because of incapacity is no longer able to take care of his or her own affairs (the “ward”). The guardian can be authorized to make legal, financial, and health care decisions for the ward. Depending on the terms of the guardianship and state practices, the guardian may or may not have to seek court approval for various decisions.

Alternatives to Guardianship

Because guardianship results in the loss of an individual’s legal capacity, it involves a profound loss of freedom and dignity. Therefore, state laws require that guardianship be imposed only when less restrictive alternatives have been tried and proven to be ineffective. Less restrictive alternatives that should be considered before pursuing guardianship include:

• Power of Attorney. 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.
• 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.
• Revocable Trust. 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 older person 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.
• Supported Decision Making. If a person can execute estate planning documents, they can also sign a durable power of attorney and a health care proxy, which allows someone to assist them with decisions without court involvement. “Supported decision making” is a growing alternative to guardianship in which trusted advisors like family, friends or professionals assist in making decisions, although the individual retains the ultimate right to make their own decisions.

For more information on alternatives to guardianship, such as establishing a power of attorney, revocable trust, or supported decision making, contact the Elder Law Attorneys at Kommer Bave & Ciccone LLP.

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