Alternatives to Guardianship
Do you have alternatives to pursuing a guardianship? Sometimes you simply have no option other than a guardianship to keep your loved one safe. Before pursuing a guardianship, however, you should consider whether there are any alternatives.
Why Consider Alternatives to Guardianship?
Sometimes there are no alternatives to a guardianship. Even the simplest guardianship, however, requires time, expense, and effort. A guardianship will involve the cost of hiring an attorney, and paying court costs. For an adult, guardianship will include obtaining the opinion of a physician or a psychiatrist that a guardianship is necessary. A conservatorship will often require a bond and a credit check. Any guardianship and conservatorship will require a court hearing.
Even the most straightforward guardianship can take months to be entered. Once the guardianship or conservatorship is created, you will have ongoing reporting requirements to the court. Avoiding guardianship can save time and money while still protecting your loved one.
What are the Alternatives to Guardianship?
You may have alternatives to a guardianship or conservatorship. For example, a power of attorney can help prevent a guardianship and conservatorship. if the person created a power of attorney before becoming incapacitated, the power of attorney can be used to accomplish many of the goals of the guardianship or the conservatorship. Alternatively, if someone is experiencing a mental health crisis and needs immediate help a civil commitment for up to 72 hours may be necessary.
Does a power of attorney replace a guardianship?
There are two types of powers of attorney. A durable power of attorney for healthcare gives someone the ability to make medical decisions for a person when he or she is unable to communicate their wishes to their doctors. A financial power of attorney enables a person to manage finances. Having these two types of powers of attorney, in combination, can take the place of a guardianship and a conservatorship. Under most circumstances, depending on the language of the power of attorney, the power of attorney can give someone the same authority they would otherwise receive from appointment by the court as guardian.
There can be circumstances, however, when the power of attorney may not be sufficient. For example, having a financial power of attorney alone may not be sufficient to enable someone to make medical decisions for a person. Also, some financial institutions are hesitant to recognize even a clearly valid power of attorney. As such, there can be times when you still need a guardianship or conservatorship even with a power of attorney.
Generally speaking though having these powers of attorney as part of your estate plan provides your loved ones and opportunity to avoid the time and expense of pursuing guardianship or conservatorship. If you are considering guardianship or conservatorship for someone, your first question should be “do they have a power of attorney?”
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Do I still need a guardianship with a power of attorney?
You may be able to do many of the same things as a power of attorney that you can as a guardian or conservator. A key difference is what the incapacitated person can do. With a power of attorney, the person still has the legal right to make decisions and handle finances. Once a guardianship and conservatorship are entered, the person loses the legal ability to make decisions. Although you may have the powers you need from a power of attorney, a guardianship and conservatorship may still be necessary to protect the person from themselves.
For example, compare the difference between giving the bank a copy of a power of attorney and letters of appointment for guardianship and conservatorship. Under the power of attorney, the bank will recognize your ability to act for the person. Without some form of clear evidence the person is incapacitated, though, the bank will also still follow the instructions of the person. By contrast, once the bank receives letters of conservatorship, the bank is now on notice that the person has no legal right to manage his or her own finances. Under this scenario, the difference between a power of attorney and a conservatorship can mean the difference between the person falling pray to financial exploitation.
Civil Commitment for Mental Health Emergencies
On the other end of the spectrum, a guardianship may not move quickly enough for your circumstances. If a person is faced with a mental health crisis, a civil commitment may be necessary instead of a guardianship.
A guardianship proceeding is designed to give the person the opportunity to appear in court and contest a guardianship. Under a guardianship, the court is taking away a person’s ability to make decisions for him or herself. To protect people from having their rights taken away, they are given opportunities to receive notice of the hearing, and to attend the hearing.
Sometimes, a person may be at imminent risk of physical harm or financial exploitation. When this happens, an emergency guardianship ad litem can be appointed. Under this process, the notice requirements are shortened to a matter of days instead of weeks or months. But what if you have an even more immediate need?
When someone is experiencing a mental health crisis, the court has the authority to commit the person to a mental health facility for up to 72 hours. This is something that is separate from a guardianship. The civil commitment is intended as an option when the person is experiencing some form of mental health crisis that requires immediate institutionalization.
Questions about a guardianship or conservatorship?
Schedule a FREE Consultation.
Guardianship lawyer Tim McCurdy
Guardianship requires a lawyer who will listen to you. You need a partner to help guide you through the complex guardianship process. Tim McCurdy will take the time to learn about your unique situation to help look for a solution.
