Guardianship
Alternatives To Guardianship
There are numerous alternatives to guardianship. Many require prior planning, which should be done well before the individual's capacity becomes an issue. Perhaps the most important of these alternatives is a durable power of attorney. Under a durable power of attorney, an individual designates another as agent to make decisions when or should the individual no longer be able to do so. Durable powers of attorney may be used for property management and for making health and personal-care decisions.
Another planned alternative is a revocable trust, often referred to as a living trust. Under this device an individual transfers his or her assets to a trustee, who holds and administers them as provided in the trust document. Most commonly the individual will act as his or her own trustee until such time as he or she is no longer able to manage the property, at which time a designated successor trustee will assume the responsibility.
Some alternatives do not require prior planning. A representative payee may be named to manage Social Security benefits. Many states have enacted health-care consent statutes allowing family members to make medical decisions for an incapacitated relative. A variety of social services, including assisted living, respite care, and financial counseling may be available to lessen an individual's need to have someone else make decisions. Before initiating the detailed procedure required to secure appointment of a guardian, all alternatives should be explored.
See also: CHILD CUSTODY; FAMILY LAW; GRANDPARENTS' RIGHTS
Bibliography
Anderer, S. J. (1990). Determining Competency in Guardianship Proceedings. Washington, DC: American Bar Association.
Commission on the Mentally Disabled/Commission on Legal Problems of the Elderly. (1989). Guardianship: An Agenda for Reform. Washington, DC: American Bar Association.
Daniel, C., and Hannaford, P. (1999). "Creating the Portable Guardianship: Legal and Practical Implications of Probate Court Cooperation in Interstate Guardianship Cases." Quinnipiac Probate Law Journal 13:351–377.
English, D. (1995). "Minors' Guardianship in an Age of Multiple Marriage." University of Miami Institute on Estate Planning 29:5–1 to 5–26.
English, D. and Morgan, R. (1998). "The Uniform Guardianship and Protective Proceedings Act (1997)." NAELA Quarterly 11:3–15.
Frolik, L. (1981). "Plenary Guardianship: An Analysis, a Critique, and a Proposal for Reform." Arizona Law Review 23:599–660.
Frolik, L. (1998). "Guardianship Reform: When the Best is the Enemy of the Good." Stanford Law & Policy Review 9:347–355.
Grisso, T. (1986). Evaluating Competencies: Forensic Assessments and Instruments. New York: Plenum Press.
Johns, A. F., and Bowers, V. (1997). "Guardianship Folly: The Misgovernment of Parens Patriae and the Forecast of Its Crumbling Linkage to Unprotected Older Americans in the Twenty-First Century-A March of Folly? Or Just a Mask of Virtual Reality?" Stetson Law Review 27:1–90.
Krasik, M. K. (1989). "The Lights of Science and Experience: Historical Perspectives on Legal Attitudes Toward the Role of Medical Expertise in Guardianship of the Elderly." American Journal of Legal History 33:201–240.
Parry, J. (1985). "Incompetency, Guardianship, and Restoration." In The Mentally Disabled and the Law, ed. S. J Brakel, J. Parry, and B. A. Weiner. Chicago: The American Bar Foundation.
Symposium Issue (2000). "Celebrating Twenty Years: The Past and Promise of the 1980 Hague Convention on the Civil Aspects of International Child Abduction." New York University Journal International Law & Politics 22:1–377.
Tor, P., and Sales, B. (1994). "A Social Science Perspective on the Law of Guardianship: Directions for Improving the Process and Practice." Law and Psychology Review 18:141.
U.S. Senate Committee on Aging. (1988). Aging America: Trends and Projections. Washington, DC: U.S. Department of Health and Human Services.
DAVID M.ENGLISH
Additional topics
Marriage and Family EncyclopediaPregnancy & ParenthoodGuardianship - Types Of Guardianship, Guardianship Of Minors, Guardianship Of Adults, Alternatives To Guardianship