While the guardianship and conservatorship roles meet various important needs, and provide care and assistance to those who are otherwise unable to adequately care for themselves, appointing a guardian and/or conservator often results in the substantial loss of an individual’s rights and liberties. As such, and as provided for by statute in Virginia, the appointment of a guardian and/or conservator is one of last resort, with the “least restrictive alternative,” if any is available, being favored by courts. When it is not unquestionably clear that a guardianship and/or conservatorship is, truly, required in a situation, there are a number of alternatives to consider.
This wide variety of tools, services, and programs that one can access and utilize in lieu of having a guardian and/or conservator appointed generally fall into two distinct categories, which are discussed in detail below.
Financial Alternatives There are a number of different alternatives which address the financial decision-making needs of an individual including, but not limited to, durable powers of attorney; trusts; joint bank accounts; and representative payment programs.
A durable power of attorney is a written document by which its creator (the principal) grants authority to an “agent” to act on his/her behalf – such authority can be general, allowing the agent to manage all of the principal’s property and finances, or special, granting the agent the authority to act in only certain specified instances. Key to the creation of the durable power of attorney is that the principal must have the legal capacity to create the document. Additionally, it is important to note that the power must be signed and notarized and, in some cases, the use of a special form may be required (many banks require this). The main advantages to creating a durable power of attorney are that it is both relatively inexpensive to do, and the principal can tailor the power to his/her anticipated future needs. Furthermore, a power can be written so as to grant the agent authority to act either immediately or in the future when the principal becomes incapacitated. As such, the durable power of attorney not only allows the principal to maintain the right to make decisions about his/her property and/or finances so long as s/he is capable of doing, but it also allows the principal to retain control over who will take over making those decisions when s/he is no longer able to do so. While there are clear advantages to the use of a durable power of attorney, one must also consider the disadvantages to using this alternative. First, the principal must take extraordinary care and thought in choosing his/her agent and ought not name someone that s/he does not have great trust in. Additionally, even if the power is executed properly, it is not uncommon to encounter difficulty in obtaining acceptance of the agent’s authority by various third parties. Finally, while it is certainly an advantage that the power of attorney’s principal is able to continue to contract with others and otherwise act, such freedom to act may, in fact, work as a disservice where the principal needs extra protection and guidance in his/her decision-making processes.
An individual (the “grantor”) may use a living trust to transfer money or property (the “trust property”) to a trustee who is then charged with managing that property for the benefit of the grantor and/or other beneficiaries as provided for in the trust document. It may also empower the trustee to contract for care or services for the grantor’s benefit. The living trust becomes effective as soon as it is created during the grantor’s lifetime, but it may indicate that the trust property is not to be transferred into the trust until the grantor becomes incapacitated, thereby allowing the grantor to retain control over the property so long as s/he is capable of doing so. Unlike the durable power of attorney, a properly executed trust may largely be accepted by third parties and, additionally, it can be structured to continue upon the grantor’s death, thereby contributing to the grantor’s estate planning tools. There are, however, two large disadvantages to the use of a living trust that must be considered. First, unlike the durable power of attorney, it can be quite expensive to create the trust document; there are also continuing management fees that must be paid. Additionally, a trust may create eligibility problems if the grantor seeks to obtain public benefits such as Medicaid.
The joint bank account is a relatively simple and straightforward alternative to conservatorship, providing two or more people the right to deposit and withdraw funds from said account. These types of accounts are easy and inexpensive to establish, may also have a right of survivorship, and are useful for an individual seeking assistance with writing checks and depositing funds. There is, however, an inherent risk in having a joint bank account in that the co-owner may withdraw all of the funds. Additionally, the account itself may be subject to the claims of any of the co-owner’s creditors. As such, one must put great thought into opening a joint bank account and it is advised that he or she completely trust the co-owner of the account.
When one uses a representative payment program, a representative payee (individual or organization) is authorized to (1) receive and cash public benefit checks for the beneficiary; and (2) manage the public benefits for the beneficiary. In most cases, and application must be filed with the Social Security Administration, which in turn must find medical/psychiatric evidence supporting the notion that the beneficiary is not able to manage his/her own benefits. Once such a finding has been made, the public benefit checks will be issued to the representative payee, who is obligated to report in to the SSA and who is also entitled to receive a small fee from acting as the representative payee. While such programs are simple and inexpensive, they lack oversight and procedural safeguards, which can be very worrisome. As such, one should give careful thought and consideration before moving forward with a representative payee program.
Health Care Alternatives Alternatives addressing the health care decision-making needs of an individual include health care advance directives and health care consent, each of which have distinct uses and advantages, as discussed below.
A health care advance directive is a written document detailing the creator’s wishes with regards to his or her future health care and may take the form of a living will or health care power of attorney. Similarly to the durable power of attorney, discussed above, key to the execution of the health care advance directive is that the creator be a competent adult who signs the document in front of two witnesses. The main advantages of executing a health care advance directive are that the creator retains control over his or her health-care decisions, and that there is little expense involved. Additionally, should a controversy over the creator’s care arise, the document may provide courts with guidance. Notably, and in relation to guardianship, courts have reversed the appointment of a guardian when the appointing court failed to consider the existence of a health care power of attorney! Despite these advantages, one must also consider the disadvantages to using a health care advance directive. First, as there is no oversight or court supervision, one must take care in selecting their health care power of attorney. Additionally, as it is nearly impossible to predict all future health care scenarios, one’s advance directive may or may not actually address the situation(s) that ultimately arises.
Where there is no health care advance directive, health care consent statutes authorize certain people to make health care decisions on behalf of an incapacitated adult; these authorized individuals include, in priority order: a guardian, the patient’s spouse, an adult child of the patient, a parent of the patient, an adult sibling of the patient, or any other relatives. These statutes allow family members to make health care decisions for an individual without first going to court, which can be incredibly important depending upon the health care situation at hand. There are, however, disadvantages to these statutes, including the fact that they are not useful when the patient either doesn’t have any family, or the family is in disagreement about the patient’s care and there is no clear majority opinion. As such, utilization of the health care consent statutes may be a last resort.
In addition to the alternatives discussed above, it is important to be aware that other less commonly used alternatives, which cannot be addressed in a short article of this nature, also exist. Even with this brief overview of the alternatives to guardianship and conservatorship, it should go without saying that determining which alternative – if any – is most appropriate in a given case can be quite difficult and complex. Additionally, it is important to note that a number of the alternatives discussed above must be created well before one may need a guardian and/or conservator. As such, if you would like to learn more about any of the alternatives listed above, or would like assistance in creating a power of attorney, or any other document discussed, please do not hesitate to contact our experienced attorneys!