Are There Alternatives To Guardianship?
Yes, many approaches less onerous than guardianship exist for assisting an elder.
Guardianship is an expensive and often-draconian measure of last resort, to be employed only when an elder presents a danger to themselves or others. One should prefer less restrictive measures that maximize the elder’s autonomy and perceived independence, and preserve the elder’s civil rights and participation in decision-making for himself.
Elders and their families can tailor the scope of assistance to the specific needs of the slowly failing elder. The approach(es) chosen will be determined by the skills of the elder’s social support network and the preferences of the elder himself.
With respect to financial matters, the elder can:
1) Establish a convenience signer on bank accounts. The elder’s bank can, with the elder’s consent, make another person a signer on the elder’s bank accounts. The bank is likely to create this relationship by opening a joint-tenant-with-rights-of-survivorship (“JTWROS”) checking account. You will want to designate on the account application that this is a convenience signer account, so that the JTWROS account does not confuse the elder’s estate plan upon the elder’s death. This sort of arrangement does not work with convenience signers who are untrustworthy, or with elders who are inclined to make impulsive purchases or donations.
2) Establish auto-deposits and electronic payments of the elder’s income and bills. The elder’s bank can help the elder set up these arrangements. This reduces the monthly bookkeeping for the elder’s finances, and reduces stress on the convenience signer.
3) Appoint a financial attorney-in-fact under a Durable Power of Attorney. An attorney-in-fact (“AIF”) has those power the elder grants in the durable power of attorney. The AIF can stand in the elder’s shoes, paying bills, investing, moving money around, selling real estate, and otherwise managing the elder’s financial world. If the elder is inclined toward improvident financial decisions, a caring AIF can ease the elder out of his own money management by slowly taking control of the checks, checkbooks, credit cards, and access to accounts.
4) Appoint a representative payee for government benefits. Social Security, Supplemental Security Income, Railroad Retirement, Black Lung, or VA benefits can be paid to a person appointed by the elder to receive the benefit and pay the elder’s obligations.
5) Create a trust. The elder can use a trust to hold his assets, pay his obligations, and provide direction from the elder about how the elder’s funds can be spent. Trusts create ongoing expenses, but are extremely flexible arrangements that can be very desirable when the elder possesses substantial assets.
With respect to health care, the elder can:
A. Create advance directives for health care and mental health care. Washington law permits an elder to instruct his or her physician(s) about the medical care he wishes to receive if he is terminal and unconscious, and also to instruct mental health providers about care the elder desires if his mental health deteriorates.
B. Appoint a health care attorney-in-fact under a Durable Power of Attorney. An attorney-in-fact (“AIF”) has those power the elder grants in the durable power of attorney. The AIF can stand in the elder’s shoes, making decisions about the elder’s health care providers, procedures, therapies, drugs, care facilities, doctors, and all other health care decisions. I recommend that the health care AIF and the financial AIF be the same person, when possible, to avoid conflicts and deadlock between the AIFs.
Elder care teams are collaborative teams of elder care professionals assembled by the elder or the elder’s AIF to reduce the stress on the caregiving family and provide a high quality of life for a declining elder. Such teams may include financial, social, psychological, legal, and day-to-day care professionals.
Graduated care facilities can provide great assistance in an elder’s declining years, where the elder’s financial assets permit such premium care. In graduated care facilities, the elder enters the facility as an independent living resident, and as the elder’s needs grow, the elder can move into an assisted living unit, a dementia unit, or a skilled nursing portion of the graduated care facility.
A competent AIF draws the elder’s social circle of supportive friends and family into meeting the elder’s needs as he declines. By involving many persons, the stressful burdens of care on the close family diminish, and the elder’s social world remains interesting, unstressed, and diverse.