Guardianship is an arrangement whereby a Court appoints someone to help manage an individual’s healthcare and financial affairs when they are no longer able to do so on their own. Typically people who require guardians are ones who may have neglected to engage in advance estate and care planning. Sometimes the Guardian will be a family member and sometimes, the Court may appoint an independent person. The Court oversees the Guardian after they have been appointed. A guardianship is preventable. There are alternatives to guardianship with prior and proper planning. The following are potential alternatives to guardianship that should be discussed with your family.
Obtaining a Representative Payee as Alternatives to Guardianship of the Property
If someone receives government benefits such as Social Security, but cannot manage the money on their own, the Social Security Administration may allow for an individual to be appointed to receive the funds on behalf of the disabled individual. Social Security calls this person a representative payee. The payee is required to use the funds to pay for the expenses of the individual and report to the agency. The payee must account to Social Security for how the money was spent. You can contact Social Security and, after doing an interview, can become appointed a representative payee. Becoming a representative payee may avoid the need for a Guardian of the Property.
Obtaining Durable Powers of Attorney
A Power of Attorney is a document used to plan ahead. A Power of Attorney allows one person (called the principal) to appoint one or more other people (called agents). In order to appoint an agent, the principal must have capacity, at the time they sign the document, to choose who they want to act as their agent. A Power of Attorney is significantly less expensive than a guardianship hearing. Having a Power of Attorney in place may prevent the need for a Guardian of the Property to be appointed. (Remember that major changes to the Power of Attorney statute will be enacted June 13, 2021 so please review your existing Power of Attorney document to make sure it still meets all of your needs).
Securing a Health Care Proxy
Much like a Power of Attorney, a Health Care Proxy is a document used to plan ahead and allows an individual with capacity to appoint another person that they trust to make healthcare decisions for them. The principal can typically choose one person at a time who can serve as their agent. A Health Care Proxy, along with other medical directives, will typically allow the principal to set forth their health care wishes. Although the Health Care Proxy can be signed at any time, the Health Care Proxy is effective after two doctors decide that you are not able to make decisions on your own. Having a health care proxy in place may obviate the need for a Guardian of the Person.
Trusts And Estate Planning As Alternatives to Guardianship
Yet another alternative to guardianship is to execute a Trust. A Trust is a contract between three parties – the trustee, the settlor, and the beneficiary. In the contact of guardianship avoidance, a Trust can serve as a vehicle for property management. Having a Trust can sometimes avoid having a Guardian of the Property because the Trustee can effectively manage your property, instead of a Guardian.
For those individuals who are disabled or planning for disability, you can create a First Party Supplemental Needs Trust or a Third Party Supplemental Needs Trust. These types of Trusts will allow you to shelter your assets while still being eligible for certain government benefits. Certain supplemental needs trust may need Court approval to be established. Each of these trusts have nuances which should be discussed with an estate planning or elder law attorney.
Obtaining Joint Checking Accounts
Another alternative to guardianship and property management is maintaining an account jointly with another person. You can also add a person to the account and have them be added for convenience only. Adding another person to the account will allow that other person to be able to pay the bills and may be an alternative to a guardian of the property.
Assistance with Care Management As Alternatives to Guardianship
Finally, should someone require limited assistance, they may be able to utilize a case management tool. Such an individual would work on a plan whereby others help assist and support the individual with the specific needs they may have, while allowing the individual to function independently in the areas they are able. For example, Adult Protective Services (APS) can provide case management without the need for a guardian. APS would appoint a case manager who can provide assistance with different needs, such as obtaining and recertifying for medicaid and public assistance, ensuring proper living arrangement, heavy duty cleaning services, safety monitoring, financial management of social security benefits and informal money management
Guardianship is an expensive and, at times, a cumbersome and difficult process. It is very possible to avoid guardianship by utilizing one of the above ideas or resources. We can help you avoid guardianship. If unavoidable, we can help you petition for guardianship. Contact us for more information.
Additional resources provided by the author
This guest post was provided by Anne Littwin, Esq.,
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