What are alternatives to appointing a guardian? Guardianship is a highly intrusive form of advocacy and should be used only as a last resort when all other alternatives have been examined. Some alternatives to guardianship may be:
Health Care Surrogates, Trustees, Durable Power of Attorney, Geriatric Care Managers...
When is guardianship appropriate?
When a person lacks the capacity to make or communicate responsible decisions concerning personal or financial matters, guardianship may be appropriate. The fact that someone has some sort of diagnosis or disability does not automatically equate to the need for a guardian. In most states, mental illness, developmental disability, physical incapacity, chronic intoxication, or even advanced age can be identified as the basis for the lack of decisional capacity.
A voluntary guardian may be appointed for a person who is not incapacitated. The person requesting the assistance of a guardian must understand that he or she is delegating the authority to another person. In addition, a physician statement must also accompany the petition for a voluntary guardian confirming that the person is competent and understands the duties of a voluntary guardian. An example would be for an elderly person whose spouse recently passed away and now the surviving spouse must take over the bill paying and management of the house. Often times, a voluntary guardian can be appointed to handle the finances/household management while keeping the person totally involved in all transactions.
Why Voluntary Guardian versus a Power of Attorney
Powers of Attorney are often abused. A power of attorney is most often abused by family members. The most favored daughter or son put in a position of trust as a power of attorney is most often the person who deceives and steals money. Unfortunately, by the time it is discovered the money is gone with no way of retrieving it in time to benefit the elder. Powers of attorney are generally not insured or bonded and there is not reporting requirement
Now, let's look at a Voluntary Guardian (even if it is that daughter or son). A voluntary guardian is appointed by the court. Once appointed, the voluntary guardian must prepare and file an inventory with the court. The court will mandate a bond be posted by the guardian to cover the assets being managed by the voluntary guardian. Finally, if money does disappear, a claim can be made to the bonding company and the voluntary guardian will suffer grave consequences by a Judge. Family members serving as power of attorney rarely are charged when stealing money because it is ofter considered a "civil" matter. Criminal prosecution is more likely to happen with a court-appointed guardian than a family member acting as a power of attorney. Voluntary guardianship protects all assets and is preferred over a power of attorney.
So in the end, think this concept through thoroughly. You can still choose the same family member to handle the affairs, but by doing so as a voluntary guardian the assets will be protected and there will be reporting requirements.
Who may be appointed as a guardian?
Individuals at least 18 years of age who have not been convicted of a felony or adjudicated disabled
Non-related professional guardians at least 18 years of age who have not been convicted of a felony or adjudicated disabled
A public or private institution not supplying housing Financial institutions (for estate matters only).
What circumstances would make appointing a professional guardian be the preferred choice?
Families are unable to assume these kinds of increased responsibilities;
Family conflict may create the need for unbiased professional independent decisions on behalf of the client;
Lack of family would call for a professional guardian to be appointed for a person in need;Legal protection is needed for individuals who become easy prey for exploitation.