We recommend a Guardianship as a last resort. If there are any alternatives, the Courts generally want those exhausted first before they will consider a Guardianship. The Courts consider these alternatives as the “less restrictive alternatives.”
If you feel that a loved one is in need of a Guardianship, we recommend first looking at less restrictive alternatives and choosing a Guardianship as a last resort. It can be a costly and time-consuming process depending on the level of incapacity, the nature of the assets, and the degree of protection needed. We will discuss three alternatives to Guardianship.
Estate Planning Alternatives
You can use Estate Planning vehicles as an alternative to a Guardianship. Estate Planning does not only encompass death-time planning, but also disability or incapacity during life. It is important to have the following incapacity documents:
- Statutory Durable Power of Attorney
- Durable Power of Attorney for Healthcare (Medical Power of Attorney)
- Directive to Physicians (“Living Will”)
- HIPAA Authorization
- Declaration of Guardian
Alternatives to Guardian of the Estate
It is now a duty of the attorneys and Court investigators to determine whether there is a less restrictive alternative to a guardian of the estate. An example of this would be what is called a Management Trust, which is a Court created trust.
This trust designates a suitable Trustee, whom the Court appoints. Usually, this Trustee is a Corporate Trustee, meaning it is either a bank or a trust company. An advantage to this less restrictive alternative is that it does not require prior Court approval before monies are spent. Another advantage is that the trustee has sole discretion as to the distribution of monies for the beneficiary. With this less restrictive alternative, the trustee must file an Annual Account. The Annual account assures the trustee properly distributes the assets for the benefit of the beneficiary.
Alternatives to Guardian of the Person
A less restrictive alternative to a guardian of the person can include the use of a geriatric care manager. The geriatric care manager’s role is to oversee the care of the individual including but not limited to:
- Hiring of caretakers.
- Finding an appropriate living facility, if necessary.
- Overseeing the care and maintenance of the individual’s home.
- Ensuring the needs of the individual are met.
Please keep in mind that the less restrictive alternatives listed above are not all inclusive. Before you decide that your loved one needs a Guardianship, take the time to look at some of these alternatives.