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What Are Less Restrictive Options to Guardianship?

ombudsman helping long-term care recipient resolve problems

Berks County-Reading-area seniors and caregivers wonder about how to handle a person’s assets when it seems the person may not be totally competent to manage their property and money on their own. Guardianship can be a way to protect individuals from abuse, neglect and exploitation, but can be abused under certain circumstances. Although beneficial when set up and handled ethically, It also restricts the rights of the individual.

Guardianship should be a last resort because it removes the individual’s legal rights and restricts the person’s independence and self-determination.  It should be used only when there are no suitable less restrictive options.  Alternatives to guardianship can include: 

  • Supported decision-making
  • Delegating health care decision-making to a person chosen by the individual in advance (advance directives);
  • Delegating financial decision-making to a person named in advance (financial power of attorney; trust)
  • Appointment of a fiduciary by a government agency that pays benefits to the individual (e.g. Social Security Representative Payee, VA Fiduciary)
  • An order by the court to authorize a certain specific action (such as a health care consent, a property transaction, a protection from abuse) instead of appointing a guardian whose authority continues over time.  The Uniform Guardianship, Conservatorship and Other Protective Arrangements Act (UGCOPAA) provides for such specific “protective arrangements.”

What is supported decision-making?

Supported decision-making (SDM) can be described as a series of relationships, practices, arrangements and agreements designed to assist an individual to make and communicate to others decisions about the individual’s life.  These arrangements and agreements can range in formality and intensity.  Some states have enacted supported decision-making agreement legislation.

Supported decision-making can be an alternative to guardianship. But guardians can also use decision-making supports to make the guardianship more “person-centered.”  The UGCOPAA recognizes that SDM is a less-restrictive alternative to guardianship and also incorporates SDM approaches in its provisions about a guardian’s powers and duties.

What is a health care advance directive?

Advance directives explain how you want medical decisions to be made if you are too ill or otherwise unable to make them yourself.  A health care proxy, one type of advance directive, names someone you choose to make health care decisions for you if you cannot.  Health care proxies are also called health care powers of attorney.  A living will explains what treatment you do or don’t want if your life is threatened, including treatments like resuscitation, dialysis, feeding or breathing tubes, and ventilators.  Some health care proxies include specific instructions about end of life care, thus avoiding the need for a separate living will.

What is a power of attorney?

power of attorney (POA) is a legal document used by an individual to allow someone else to manage money and property on their behalf. It is a tool for planning for future incapacity because a trusted person (the agent) can stand in for an individual (the principal) who can no longer make or communicate financial decisions.  Generally, powers of attorney are durable, meaning they continue in effect even after the principal loses the ability to make financial decisions. Powers of attorney list the things that the agent can do and the document can be tailored to the needs of the principal. (A health care power of attorney is different than a power of attorney for finances.)

What is a living trust?

living trust is a legal document used by an individual to give someone else legal authority to make decisions about money or property in the trust. In order for a trust to take effect, the individual must put money or property in the name of the trust. The trustee then manages the money or property in the trust if the individual who set up the trust cannot.  The trust also says who gets the money or property after the person who created it dies.

What is a Social Security representative payee?

When an individual (known as a beneficiary) receives Social Security or Supplemental Security Income (SSI) benefits, the Social Security Administration (SSA) that beneficiary cannot manage the benefits independently.  In that case, SSA appoints a representative payee to receive the benefits and use them for the current needs of the beneficiary.  Often the representative payee is a family member, but could also be a friend, legal guardian or an organization.  A representative payee’s authority only covers the benefit payments—the payee cannot manage other money or property owned by the beneficiary, or make any other decisions. Representative payees must keep records to show how they have managed the benefits, and some representative payees must file annual reports with SSA.

Other government agencies that pay benefits similarly appoint individuals or organizations to manage benefit payments for individuals who can’t manage their own finances.  For example, the Department of Veterans Affairs appoints VA fiduciaries to receive and manage VA benefits. While Social Security representative payees and VA fiduciaries are the most common government fiduciary programs, there are other federal and state programs for other benefit payments.

What are some tools to help people find alternatives to guardianship?

These educational tools provide information and action steps to implement options that are less restrictive than guardianship:

Finding the Right Fit: Decision-Making Supports and Guardianship is a free online interactive tool designed to provide information and guidance to individuals who need help with decision-making, and their friends and family.  The training highlights types of decision-making supports and includes information about the ethical standards of practice for guardians.

The Thinking Ahead Roadmap helps people plan for possible future incapacity and to designate a financial decision-maker such as an agent under a power of attorney. The Roadmap aims to help people protect themselves against financial exploitation and mistakes, and to avoid guardianship.

Considering a Financial Caregiver? is a fact sheet from the Consumer Financial Protection Bureau that describes different types of informal and formal financial caregivers.  It includes questions to ask when choosing someone to help manage finances.

Click here to view our videos about the various issues Attorney Painter can help you with.

The law office of elder law attorney Scott C. Painter, P.C., is located in Wyomissing (outside of Reading, PA, in Berks County,) and offers trusted legal services in the areas of elder law, including nursing home planning, trust and estate services, and veterans benefits. Scott C. Painter is a Certified Elder Law Attorney (CELA®), and he is also a member of the National Association of Elder Law Attorneys (NAELA). 

If you have an issue or question, we encourage you to call us. With legal matters, time is of the essence. Call us for a consultation at 610-378-5140. The $300 consultation fee is waived if Attorney Painter is retained to perform services.

This article is taken from The United States Department of Justice: