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If you believe a loved one may require a Guardianship, it is important to first explore less restrictive alternatives first and Guardianship as a last resort. Guardianship can be a costly and time-intensive process, with complexity depending on the individual’s level of incapacity, the nature of their assets, and the degree of protection required. Below, we outline common alternatives to Guardianship.
Estate planning provides a proactive approach to managing a loved one’s affairs and can often serve as a viable alternative to Guardianship. Estate planning is not limited to post-mortem planning but also addresses potential disability or incapacity during life. Key documents to consider include:
- Statutory Durable Power of Attorney: Grants authority to manage financial and legal matters.
- Medical Power of Attorney: Designates a trusted individual to make healthcare decisions.
- Directive to Physicians (“Living Will”): Communicates preferences for end-of-life medical care.
- HIPAA Authorization: Allows designated individuals to access medical information.
- Declaration of Guardian: Specifies the individual’s choice for a guardian if one becomes necessary.
Alternatives to Guardian of the Estate
Under current practices, attorneys and court investigators are tasked with identifying less restrictive alternatives to appointing a guardian of the estate. One such alternative is a Management Trust, a court-created trust managed by a court-appointed Trustee. Key benefits of a Management Trust include:
- Discretionary Management: The Trustee has sole discretion over the distribution of funds for the beneficiary’s benefit.
- Streamlined Processes: Unlike Guardianship, prior court approval is not required for expenditures.
- Accountability: The Trustee must file an Annual Account, ensuring assets are managed and distributed appropriately.
Typically, a Corporate Trustee, such as a bank or trust company, is appointed to ensure professional management of the trust.
Alternatives to Guardian of the Person
For individuals requiring care oversight rather than full Guardianship, a Geriatric Care Manager can provide a less restrictive option. A Geriatric Care Manager coordinates and supervises the individual’s care, which may include:
- Hiring and managing caregivers.
- Identifying suitable living arrangements.
- Overseeing the upkeep and management of the individual’s home.
- Ensuring that all care needs are met efficiently and effectively.
Final Considerations
The alternatives discussed above are not exhaustive. Each situation is unique, and the most appropriate solution will depend on your loved one’s specific needs and circumstances. By exploring these less restrictive options, you may find a solution that balances care, autonomy, and efficiency without resorting to a full Guardianship. Before deciding to pursue Guardianship, consult with a qualified attorney to evaluate all available alternatives and develop a tailored plan that aligns with your loved one’s best interests.
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