Tuesday, November 23, 2021

Is Guardianship Replaceable?

The most recent issue of BIFOCAL (the publication of the ABA Commission on Law & Aging) contains an article by David Godfrey, Replacing Guardianship / Conservatorship.  He identifies three areas where folks may need help: "health care decisions, personal care decisions and financial management" and notes that the assistance provided often comes from "family and concerned friends."  Mr. Godfrey analyzes each area and discusses the options to provide support.

For health care decisions, he note family consent statutes will work, except "when the person has no identifiable family or friends willing to assist, when there is conflict between family members, or when the person making the choice appears to be committing abuse. It is possible for laws to be structured so that state actors can select someone to have legal authority to consent to health care under those
circumstances." (citations omitted).  For Personal Care Decisions,  "[these choices often have a low risk of harm...  and  choices  simply need to be made to keep the person happy, safe, and with appropriate nutrition. Where there are challenges in personal care decisions, support by family and friends will most often replace guardianship." Noting the increase in disputes regarding visitation, he references a trend where  folks "are increasingly being advised to leave specific written directions on contact or visitation in the event of a decline in capacity, to replace the use of guardianship to resolve concerns about contact or visitation."  He notes that living arrangements is a hybrid of personal and legal issues. ". Powers of attorney, authorized signers on financial accounts, and trusts are planning tools that can replace guardianship. When those options are not available, laws can be created to allow courts to issue limited protective orders, to approve leases, sales, or purchases of property, or
approve occupancy or admissions agreements, and are limited in scope to just that one issue, with oversight by the court and accountability to the court." 

Finally, for financial decisions,  he discusses various devices that empower another to make financial decisions for a person and oversight mechanisms such financial management professionals or giving family members access to view the person's account statements online.  He discusses protective arrangements and the risk of elder abuse and offers this conclusion:

Successful planning and legal alternatives can replace many guardianships. In many states, laws and practices need to be changed to allow more alternatives. All of these can fail. No one tool is a guarantee of safety. Criminals have used every tool in the box to abuse and exploit. Everyone needs to be urged to plan for incapacity; we are all only one health care event away from needing help meeting our basic needs and protecting ourselves from harm. Currently, we fail to plan more often than plans fail. Guardianship becomes the replacement for failure to plan, or for plans that have failed. It is time to turn that on its head and replace guardianship.



Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, State Statutes/Regulations | Permalink