Alternatives to Guardianship

Because a guardianship or conservatorship involves a profound loss of freedom and dignity, state laws require that such arrangements be imposed only when less restrictive alternatives have been proven to be ineffective. Less restrictive alternatives may include:

Power of Attorney

A power of attorney is the grant of legal rights and powers by a person (called the "principal") to another (the "agent" or "attorney-in-fact"). The attorney-in-fact stands in the shoes of the principal and acts for him or her on financial, business, health care decisions or other matters. In most cases, even when the power of attorney is immediately effective, the principal doesn't intend for it to be used unless and until he or she becomes incapacitated.

Representative or Protective Payee

This is a person appointed to manage Social Security, Veterans' Administration, Railroad Retirement, public assistance or other state or federal benefits or entitlement program payments on behalf of an individual. The representative or protective payee acts much like an attorney-in-fact, but for the limited purpose of a particular program.

Conservatorship

In some states, a guardian proceeding for an adult is called a "conservatorship." Like a guardianship, a conservatorship is a court-supervised arrangement for a person who cannot handle his or her own affairs (called the "conservatee"). The person appointed to oversee the affairs of anther is called the "conservator."

A conservatorship can cover the "estate" only (meaning the conservatee's financial matters) or it can cover the "person" (meaning the conservatee's physical well-being), or both (called a "conservatorship of the person and the estate").

A conservatorship proceeding can be voluntary, where the person needing assistance (called the "conservatee") petitions the probate court to appoint a specific person (the "conservator") to manage his or her affairs.

Such a proceeding can also be involuntary when the proposed conservatee opposes having someone appointed to oversee his or her affairs. When the proceeding is involuntary, it goes before a judge for a trial to determine if the proposed conservatee has the capacity to handle his or her own affairs.

Revocable trust

A revocable or "living" trust can be set up to hold an older person's assets, with a relative, friend or financial institution serving as trustee. Or the older person can be a co-trustee of the trust with another individual who will take over the duties of trustee should the older person become incapacitated.

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