Guardianship laws usually emphasize that guardianship should be avoided by families and courts whenever possible. Alternatives to guardianship are preferred over the deprivation of rights that results from guardianship proceedings.

Alternatives to guardianship may include:

• Representatives or substitute payees.

• Case/care management.

• Health care surrogacy.

• Trusts.

• Durable powers of attorney for property.

• Durable powers of attorney for health care.

• Living wills.

• Community advocacy systems.

• Joint checking accounts.

• Community agencies/services.

• Supported decision-making agreements.

The courts should remove only those rights that the proposed person under guardianship is incapable of handling. Even within the context of a court-appointed guardianship, a responsible guardian will take into account the wishes and desires of the person under guardianship when making decisions about residence, medical treatments, and end-of-life decisions. The National Guardianship Association has adopted Standards of Practice for Guardians, and a number of states have enacted provisions which impose ethical standards for decision-making on professional and/or family guardians.

Read the National Council on Disability's report, Beyond Guardianship: Toward Alternatives That Promote Greater Self-Determination for People with Disabilities (published March 22, 2018).

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Legal Tools - Health Care

Health Care Issues

Health Care Advance Directives

You can use documents that give directions to others in case you become unable to make your own medical decisions. In most states there is one document that is called a Health Care Advance Directive and it includes a power of attorney for health care and instructions to the person you select to be your health care agents about your medical preferences. In some states, the same information is separated into two documents: power of attorney for health care and living will. A living will often applies only to the very end of life and you do not choose a person to carry out your wishes. It is simply a document that states your wishes.

Health Care Powers of Attorney

A health care power of attorney is a written, witnessed document that gives authority to another person to act for you or to represent you in medical situations. The person granting the power is called the principal. The person exercising the power is the agent. A power of attorney for health care can take effect at the time you sign it, but most likely you will want it to take effect only when you decide it should or if a physician thinks you have lost the ability to make medical decisions.

It is very important for you to pick someone you trust and that you discuss what is important to you with that person. You also need to let the person know who your medical providers are, what treatments you do not want and if there is anyone in your family who might disagree with your wishes. You can include statements such as: “Should I be in an incurable or irreversible mental or physical condition, I direct my physician to withhold or withdraw treatment that merely prolongs my dying. I further direct that my treatment be limited to measures to keep me comfortable and to relieve pain.” Or, you could say, “I want everything possible done to keep me alive.”

If there is a medical crisis, the agent will need to be prepared to let people and medical providers know about the power of attorney and be ready to produce a copy. You need to give your doctor a copy of the power of attorney for health care. It’s a good idea to give a copy to at least two other people so they know what you want and who you have selected to make decisions on your behalf. The health care power of attorney has advantages and disadvantages.

Advantages

• Appointing an agent will give you a voice in your health care in the future, when you otherwise may have no voice.

• The powers you delegate to your agent can be as broad or narrow as you want.

• It is inexpensive to prepare and does not require an attorney. Your state’s recommended form can easily be found online.

• A power of attorney for health care may provide guidance to a court if a controversy develops about your medical preferences or if a guardianship request is filed with the court.

• The instructions included in your power of attorney for health care often will be honored even if a guardianship becomes necessary.

• Powers of attorney for health care can contain end-of-life decision-making directions.

• You can change your mind about your preferences or who you want to be your agent.

Disadvantages

• No one supervises your agent.

• The power of attorney for health care may or may not be valid from one state to another.

• It is possible that the document is not available in the medical record, or the directives don’t give the guidance the physicians need.

• People change over time. Medical treatments change. It is hard to anticipate in advance what will be needed.

Physician Orders for Life-Sustaining Treatment (POLST)

These are special doctor orders for the treatments you want to receive at the very end of life. They are used only when the patient already has a serious, progressive, chronic illness. You decide how much care you want and the doctor makes an order. This means that all health care providers must follow the directions on the order. The order covers such things as treatments to get your heart and lungs started again if they stop, the amount of medical treatment you want including control of pain, and the use of feeding tubes. If you are not able to participate in the discussion about what should be in the POLST, the person who is your guardian or who you’ve chosen in your Health Care Power of Attorney can do this for you.

Advantages

• Your doctors have clear instructions as to your wishes.

• Family and friends know what you want.

• You can make the decisions about end of life treatment when you are already very ill.

• This is your doctor’s order which means it is legally enforceable.

Disadvantages

• Not every state has a POLST law. Many are in the process of developing one.

• It might be hard to make these decisions when you are already very ill.

Health Care or Family Consent Laws

Most states have laws that permit family members (or others who know the patient) to make health decisions for you even when you haven’t made any written plans. The laws have a priority list of people who can make medical decisions for you. If there is no guardian, family members come in order of their relationship to you. A friend of yours may be at the end of the list in some states.

By law medical practitioners can provide emergency care and routine care to adults who cannot give informed consent. No decision-maker is needed. But major non-emergency medical care requires a decision-maker to consent to the treatment, such as surgery, medication, placement of feeding tubes, use of antibiotics, and breathing tubes. State laws differ as to what decisions family and friends can make. Some states have laws and procedures that deal with these decisions but they are different in each state. Sometimes, when there is no one to make the decisions, doctors are left to decide what to do and they have to act according to the ethics of their profession.

Advantages

• No court proceeding is necessary.

• No prior documents need to be prepared.

• There is no cost to you or your family.

• You do not have to do anything.

Disadvantages

• Your wishes may not be known or taken into account.

• Decision-making is done by others who may or may not have your best interest at heart.

• The person called on to make decisions may be unprepared and not know what to do.

• Family members may disagree.

• The health care decisions that can be made this way vary by state.

Single Court Transactions

Some states have laws that permit a judge to make a single medical decision for you without appointing a guardian. Doctors at a hospital might ask the hospital attorney to officially request that a judge make the medical decision if your family members cannot agree or are uncertain what to do for you. Your, family members themselves can also officially ask a judge to make the medical decision.

An attorney may be appointed to represent your wishes, depending on your state law. The judge then hears or reads the evidence about your situation including any statements you have made. Your personal history and values, to the extent that they are known, are taken into account. The judge makes the decision.

Advantages

• A judge’s order will settle the dispute, at least legally.

• Your side of the story will be acknowledged and taken into account if it is known.

Disadvantages

• Most people are not familiar with courts.

• Court decisions can be seen as taking the power away from you or your loved ones.

• Attorneys are needed, and there is a cost involved.

Legal Tools - Financial Issues

Powers of Attorney

A power of attorney is a written, witnessed document between you and another person. In it you give authority to the other person to act for you or to represent you in financial matters. The person granting the power is called the principal. The person exercising the power is the agent. It is very important for you to pick someone you trust and who is capable of helping you with your finances. You must be able to understand what you are doing when you sign a financial power of attorney. Otherwise, the power of attorney is not legal.

There are three types of powers of attorney: limited or specific, general, and durable. A limited or specific power of attorney can be given for a limited time or a single action. For instance, if you are traveling out of the country, you might authorize a family member or friend to sign the closing documents on the refinancing of your investment property. A person who has severe arthritis in her hands might sign a power of attorney specific only to one of her bank accounts so that her sister can write out her monthly bills. Most financial institutions have their own power of attorney documents.

A general power of attorney usually gives your agent the right to handle all your financial affairs. Both the specific power of attorney and the general power of attorney become invalid if you lose the ability to make decisions due to an illness or accident.

A durable power of attorney permits your agent to continue to make financial decisions for you in case you lose the ability to make your own decisions. A durable power of attorney may take effect either at the time it is signed or later with a “springing” clause, which means it takes effect only if you lose the ability to make decisions or at the specific time you want your agent to start having authority.

Advantages

• Powers of attorney are private arrangements.

• You get to choose who you want to be involved in making your financial decisions.

• You can revoke the power of attorney at any time unless you become unable to make decisions. If that happens, only a court can change it.

• Guardianship may be avoided.

• You can decide which specific powers to give your agent or you can give your agent generalized authority.

Disadvantages

• Your agent is not supervised by anyone and is not accountable to anyone except you. So you should only use a power of attorney if you have someone you really trust to be your agent.

• It is best to consult an attorney familiar with powers of attorney to make a document suited to your needs, so there is usually a cost involved.

• There is no bonding for agents, which means that if your agent mishandles your assets or uses them for their own benefit, there is no way to reimburse you for the lost assets.

• Banks may not honor some power of attorney forms.

• Courts can review powers of attorney by ordering the agent to account for the way they have managed your money. This review may be difficult if there is no requirement that agents keep records of how they deal with the principal’s assets.

• Few educational materials are currently available for agents that outline their responsibilities and liabilities or guide them in their duties.

• Many agents, especially family members, do not know that they cannot mix your money with theirs.

• It is very easy for an agent to begin using your money for themself or to give gifts to others.

• There are no requirements at the time you execute a power of attorney to determine if you have full decision-making capacity and are not being unduly influenced.

• Your agent can resign at any time which would leave you without someone to handle your affairs, if you no longer have the ability to write a new power of attorney.

Trusts

Trusts are written legal agreements that provide for money and property management. An attorney is involved in drawing up trusts. The person who establishes a trust is termed the trustor or the grantor or the settlor. The person or institution that manages the trust is termed the trustee. The person who receives funds from the trust is termed the beneficiary. There are three types of trusts: revocable or inter vivos, testamentary, and special needs. Special needs trusts are created when you are already disabled and there are funds coming to you from a lawsuit or an inheritance. Testamentary trusts take effect upon your death. By far, the most common trust is the revocable or inter vivos or living trust.

In most revocable trusts, the trustor names themselves as the trustee at first and at the same time names another person or institution to take over as successor trustee if they lose the ability to make financial decisions. Because losing capacity to make decisions may be gradual, the trust should define at what point the successor trustee should take over, such as when one or two physicians evaluate you and decide that your successor trustee should take over. Or, you might resign as the trustee and have your successor trustee take over. You will need to change the title of ownership from your name to the name of the trust on any of the assets you want to be managed by your trust. This is called “funding” the trust. Attorneys also recommend that you have a will that states that all your assets, either current or acquired in the future, are meant to be part of the trust. This is called a “pour over” will.

Advantages

• You can change the trust at any time as long as you still have the ability and understanding to do so.

• Trusts are private and confidential.

• Having this type of trust shortens or eliminates delay in distributing your property to your heirs upon your death. A successor trustee can usually act more quickly than an executor. However, if you do not have a pour over will and assets that are not in the trust, probate court action may be necessary.

Disadvantages

• This type of trust does not reduce taxes.

• Trusts are usually not useful for small estates

• Sometimes people neglect to “fund” the trust, and then it has no effect.

• Transfer to a trust may have negative consequences on your eligibility for public benefits.

• Attorney fees are involved to set up the trust and to distribute the trust after your death. Trustees are entitled to fees for such things as preparing documents, tax returns, transfers of property and other costs involved in running and distributing the assets of trust.

• There is no court supervision unless you specify it in the document.

• There is no bonding requirement, which means that you are not protected if the trustee mishandles the funds or uses them for themself. Recovery of funds will involve attorneys and court costs and may even be impossible if all the assets have been spent.

• Because of the privacy of a trust, no notice is given to family members or other parties that it exists. This can cause confusion in families.

• An agent with durable powers of attorney, representative payee or even a guardian may still be needed for such things as dealing with special services, Medicare and Medicaid, personal income taxes, health care, medical decision-making, and daily living expenses.

• So-called “trust” mills are increasingly common. Employees of these organizations contact people promising that they can avoid taxes, costly attorney services, and the probate court process if only they draw up a trust. The “trust advisor” comes to the person’s house with a “one-size fits all” document that may be inappropriate, unnecessary, or poorly crafted. Expensive lawsuits can result from these poorly drawn trusts.

Joint Ownership

Cash assets and real property can be jointly owned with another person. You can put someone else’s name on your home or other real property or your bank or brokerage account. Even though the money was yours to start with, once you create a joint bank account, it legally belongs to you and the person whose name is now on your account. Most banks will allow you or the other people to add or withdraw funds from the account without any questions and without contacting the other joint owner.

Advantages

• Joint tenancy allows another person to manage your property or assets or pay your bills if you cannot do it.

• There is usually no cost to set it up with a bank or brokerage firm.

• Joint tenancy arrangements are best used when there are few assets and when you have someone you totally trust to be a joint owner.

• You can discontinue the joint tenancy arrangement at any time.

• The surviving joint owner automatically gets the property or money when the other joint owner dies.

Disadvantages

• You lose exclusive control over your house and/or your finances.

• The joint owner has the legal right to remove all money from a joint account, even if you are the only person who deposited the money.

• Conflict over the management of your assets may arise.

• No bonding or insurance is available to protect your assets if the other person takes the money or mishandles it.

• Assets that were previously yours are now subject to the other person’s debts including taxes.

• Medicaid considers creating a joint account is a gift to the other person, which could make you or the other person ineligible for Medicaid.

Representative Payee

Several federal agencies are authorized to appoint a person, or institution (bank, nursing home) to receive federal benefits on behalf of the recipient. These agencies include:

• Social Security Administration

• Veterans Administration

• Department of Defense

• Railroad Retirement Board

• Office of Personnel Management

The person or institution that receives the check is termed a representative payee, or federal fiduciary. This arrangement is meant to assist adults with diminished capacity who are unable to handle their own benefits. Physician statements as well as those by relatives and friends are accepted as evidence that a representative payee may be needed. Federal programs have different rules concerning who can serve as a representative payee. Social Security has by far the largest representative payment program.

Advantages

• There is no cost to set up a representative payee arrangement.

• It is a very helpful arrangement if this is the only income you have.

Disadvantages

• A representative payee arrangement pertains only to benefits from the federal government. If you have other money or property, you will need some other arrangement.

• Although representative payees are required to give an accounting of your funds to the government agency, the requirement is not rigorously enforced. There is generally little oversight, and it is possible that a representative payee may misuse your benefits.

• There is little investigation of proposed representative payees.

• A doctor’s statement is required.

Single Court Transactions

Some states have laws that permit a judge to make a single financial decision for you without appointing a guardian. If your family members cannot agree or are uncertain what to do for you about a financial matter, they can officially ask a judge to make the financial decision. In a single court transaction for finances, the circumstances may involve asking a judge to freeze assets if there is evidence someone is draining your bank account or trying to sell your house without your permission. Often the police or adult protective services make these requests of the court.

An attorney may be appointed to represent your wishes depending on your state law. The judge then hears or reads the evidence about your situation including any statements you have made. The judge makes the decision.

Advantages

• A judge’s order will settle the dispute, at least legally.

• Your side of the story will be acknowledged and taken into account if it is known.

Disadvantages

• Most people are not familiar with courts.

• Court decisions can be seen as taking the power away from you or your loved ones.

• Attorneys are needed, and there is a cost involved.

• There may be delays in court proceedings.

Guardianship Resources