ALTERNATIVES TO GUARDIANSHIP

Many people who have a physical or mental disability can actively participate in making their own life decisions. Because guardianship results in the restriction of freedom and self-determination for an individual, less restrictive alternatives must be considered before seeking guardianship.

Care/Case Management - For help with daily tasks and with obtaining benefits and services

Many people are able to make their own responsible decisions but are unable to carry them out due to disability or limited mobility. Care managers can make home visits and provide assistance with obtaining benefits and services, paying bills and balancing bank statements, referrals to local resources, treatment coordination and advocacy, escorting to appointments, running errands, planning long-term care, and other services, as needed. Care managers can "check in" on those who are homebound or who have limited mobility to help assess their needs and monitor their care and safety.

Advance Health Care Directives - For help with medical treatment only

Any adult who has capacity can create a legal document appointing someone (an "agent") to carry out their wishes with regard to medical treatment in the event they are no longer capable of making or communicating such decisions (advance health care directives). A person can also state their preferences as to the use of death-delaying medical procedures, and can choose who they would prefer to serve as their guardian in the event that one is appointed in the future. Advance directives can only be created or changed by the individual personally; no one else can do it for them. An individual chooses whether their agent's authority to make decisions begins when they sign the directive, or only when they become incapacitated, and he or she can revoke it at any time. All authority terminates upon death of the individual. Copies must be provided to all named agents, as well as to the primary care physician. No court appointment is necessary. (NOTE: If no advance directive is created prior to a person becoming incapacitated, or if it is found to be invalid, New Mexico state law sets forth the order in which individuals are given priority in making health care decisions.) See "Surrogate" in Glossary of Terms.

Durable Powers of Attorney - For help with legal and financial matters

Any adult who has capacity (the "principal") can create a legal document appointing someone (an "agent") to carry out their wishes with regard to their legal and financial affairs in the event they are no longer capable of making or communicating such decisions. The principal decides whether the power of attorney (POA) becomes effective when they sign it or only after they become incapacitated. The POA gives the agent authority to act on the principal's behalf, but it does not take away the power of the principal to continue to act on his or her own behalf. The principal chooses the areas in which the agent has authority, or states that the agent has full authority. They can also choose who they would prefer to serve as their guardian in the event that one is appointed in the future. POA's can only be created or changed by the principal (no one else can do it for them), and the principal can revoke it at any time (as long as he or she has capacity). "Durable" powers of attorney remain in effect even after the principal has become incapacitated. No court appointment is necessary. All of the agent's authority terminates upon the death of the principal. (For more details on Powers of Attorney, see Glossary of Terms.)

Representative Payee - For help managing Social Security, VA or other pension benefits

This may be an appropriate choice for people who receive only Social Security benefits, Veterans (VA) benefits or other benefits such as pensions that allow another person to serve as representative payee. Benefits are paid directly to the "rep payee," who signs an agreement with the relevant agency (i.e., Social Security) to manage the benefits of an individual who is unable to handle their own finances. The funds are deposited into an account in the individual's name, but only the rep payee has access to the account. No court appointment is required.

Trusts - For handling finances and/or property on someone else's behalf

Anyone who has capacity can create a "revocable trust" in which they appoint someone ("successor trustee") who they want to take over their affairs when they become incapacitated and/or upon their death. If the person who created the trust becomes incapacitated, the successor trustee can begin managing their finances by obtaining two letters from physicians confirming the incapacity. No court appointment is required.

A "special needs trust" can be established for a disabled person who is receiving SSI benefits without jeopardizing their eligibility for such benefits. The funds are not paid directly to the disabled person, but are paid to others on their behalf. No court appointment is required.

For more information on trusts and other estate planning options, please consult an attorney.