Are There Alternatives to Guardianship and Conservatorship?

Both the guardianship and conservatorship can also take away a person’s right to bring and defend actions in court. There are several other, less intrusive ways to act on behalf of someone with diminished mental or physical capacity.

Guardianships and conservatorships are used when family members no longer believe their loved ones are able to make decisions or when they are physically incapacitated. A guardianship takes away a person’s right to consent to medical treatment, establish a residence, sign a contract or even to marry. A conservatorship lets the appointee manage their ward’s finances and assets, buy and sell businesses and enter into commercial transactions. 

Are there other, less intrusive ways you can act on behalf of someone with diminished mental or physical capabilities? The article “Alternatives to guardianship and conservatorship,” from On Common Ground News, offers some different approaches.

One is a petition for a temporary medical consent guardian. Based on the facts in the petition, the court can determine whether there is cause, to believe the proposed medical consent ward needs a temporary medical consent guardian immediately. This occurs after all the preliminary steps have been taken, which includes a hearing. That temporary guardianship terminates, when either the court removes it, if a permanent guardian is appointed, when the hospitalization or stay in another healthcare facility ends or sixty days after the appointment is made.

An alternative option to conservatorship is the Durable Power of Attorney (DPA), which permits a competent individual to name another person as their legal representative regarding finances and other matters. There can be specific instructions, and this also can include an agent who is named to make health care decisions. A DPA is broader in power than a living will and applies any time the individual becomes incapable of either making or communicating health care decisions on their own behalf.

If you are a resident of Georgia, the state’s Advance Directives for Health Care combines the living will and health care power of attorney into one document. This gives instructions regarding how the person wants medical decisions to be made. Note that every state has its own laws and processes for these documents.

A Special Needs Trust (SNT) is a trust that can be established for a person with a disability and the assets can be used in specific ways. This kind of trust permits a person with a disability to have access to funds that might make them ineligible for certain types of programs funded by the state or federal government. The SNT allows for much more flexibility than a conservatorship and should be considered for a special needs individual first.

There are many different tools to achieve goals in the estate planning attorneys’ tool box. An in-person meeting with an experienced estate planning attorney is the best means of exploring what tools are available and appropriate to your family’s situation.

Reference: On Common Ground News (Nov. 29, 2018) “Alternatives to guardianship and conservatorship”

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