Magazine article The Exceptional Parent

Alternatives to Guardianships

Magazine article The Exceptional Parent

Alternatives to Guardianships

Article excerpt

Q My son, Jeff, who has cerebral palsy and is mildly developmentally delayed, is about to turn 18. His high-school social worker asked if we had thought about a guardianship for him. We had not because Jeff is able to participate in making most decisions for himself. Are we wrong not to apply for a guardianship?

A It depends. A guardianship of the estate--also called a conservatorship--is a legal means of protecting minor children and incompetent adults who cannot make decisions and act on their own behalf due to a mental or physical impairment. It is, however, only one way of protecting a person with a disability.

You need to ask yourself why and for what purpose a guardianship is needed. Depending on Jeff's abilities, a less-restrictive and less-intrusive alternative may be appropriate for him.

Guardianship alternatives

For Jeff's medical care, or to advocate on his behalf in that arena, all that may be needed is either a durable power of attorney for health care (referred to as a "health care proxy" in some states) or a limited guardian of the person for medical purposes only.

A person with a disability, who is otherwise competent, can sign a durable power of attorney, authorizing a parent, sibling, or other person as an agent. Jeff's agent would be able to sign his name, represent him at meetings he cannot attend, and make decisions he feels are too complicated to make alone. If Jeff disagrees with an agent's decision, Jeff's own will takes precedence. He can revoke the power of attorney at any time.

If Jeff is unable to make day-to-day decisions independently or, due to his disability, is unwilling to accept the guidance and assistance you or feel is necessary, then you may want to consider a limited guardianship. This will protect Jeff from being exploited or from making dangerous decisions.

If your concerns are more financial in nature, possible alternatives to guardianship include:

1) a durable power of attorney for property is a legal document that allows Jeff to appoint an agent as the legal authority for his financial affairs. It is inexpensive to prepare and does not require court involvement or payment of a bond. Again, Jeff can withdraw the power of attorney or change the agent at any time. Because of this, it is not recommended for people either with a history of mental illness or who can be easily influenced by others. They may revoke the power of attorney just when it is needed most;

2) a limited guardianship of the estate may be appropriate if Jeff is capable of handling his income or a small savings account, but could be exploited if he had access to and control over a larger sum of money or assets. …

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