The following list presents some common less-restrictive alternatives to guardianship.
GUIDANCE AND SUPPORT FROM FAMILY OR FRIENDS: Family members or friends explain the advantages, disadvantages and risks regarding issues in the person's life. Those advantages, disadvantages and risks are communicated in a manner that ensures the person has the basis with which to make his/her own decisions.
When to use it: This is the least restrictive option as it does not affect a person's rights, and uses naturally-occurring supports. It should be considered for a person who has the capacity to give informed consent and who generally makes decisions that are in his or her best interest.
REPRESENTATIVE OR PROTECTED PAYEE: The designation of another person or organization to receive and manage public benefits on behalf of an individual, such as Supplemental Security Income (SSI), Old Age, Survivors, and Disability Insurance (OASDI - the official name for Social Security), veterans' benefits, or civil service and railroad pensions. Each program has its own statutory authorization and rules for eligibility, implementation, and monitoring.
When to use it: Family and friends are considered first to serve as payee. If family or friends are not available, approved organizations may serve. This option should be considered if the person receives benefits as described and does not have the ability to manage his or her own finances. Other types of assistance may be needed to assist the person to manage other sources of income or property.
LIMITED BANK ACCOUNT: Accounts that restrict access to the funds in a bank account, such as requiring two signatures on withdrawals and checks or limiting the amount of funds the person can withdraw. Precaution: If the account is considered a joint account, everyone whose name is on it owns everything in it, even if the money actually belonged to only one of the parties. So, if one of the owners dies, the other inherits everything in it. Also, creditors of one owner can garnish it, regardless of whose money originally went into the account. Solution: Get a convenience account instead, where the other person is a signer only. The signer does not own the contents and does not inherit the contents if the owner dies.
When to use it: This option should be considered if the person has the capacity to give informed consent and has the ability to manage his or her finances, but consistently mismanages it, resulting in exploitation by others or in serious damage to his finances. Or it should be considered if the person does not meet criteria for capacity, makes some decisions regarding how to spend his or her money, has a basic ability to access his or her bank funds, but consistently overdraws his funds. If there is no guardian to consent to the use of this type of account, its use is a rights restriction, and must have the consent of the individual.
POWER OF ATTORNEY: A legal authorization that transfers one's right to make decisions of person and/or property to someone else. While the person is still able to make decisions, the Power of Attorney is analogous to the person cloning himself – he can still make decisions or he can have the attorney-in-fact make the decisions for him. It is possible to personalize a Power of Attorney to specific situations or time periods.
A Power of Attorney requires that the person understands that he is authorizing the other person to act on his behalf. It presumes capacity. The person who authorizes a Power of Attorney can revoke it at any time, up until the subject is deemed incapacitated by two physicians in writing. If the Power of Attorney continues during periods of incapacity, it is called a Durable Power of Attorney. Powers of Attorney have no authority after the death of the subject.
An attorney's assistance may be needed in order to execute a Power of Attorney (especially when property is involved). Forms or guides for drafting a Power of Attorney are found in most libraries or may be available in specific software programs, but it is always a good idea to consult with an attorney because, if written incorrectly, a Power of Attorney can easily be used to exploit someone. DHS publishes the following form regarding health care powers. Powers of Attorney do not have to be filed with the court. However, when the Power of Attorney involves real property, it must be filed with the county clerk. Copies of health care Powers of Attorney should be given to all health care providers.
- Durable Power of Attorney with Health Care Powers Only: Allows the individual to name an attorney-in-fact or agent to make routine health care decisions. The attorney-in-fact never has the authority to make life-sustaining treatment decisions. Also, the attorney-in-fact cannot complete an Advance Directive for the subject. However, it can be used to name someone, referred to as a representative, to sign a Do Not Resuscitate Consent Form for the subject at the appropriate time. Requires two witnesses, eighteen years of age or older, who are not named in the individual's will and not related by blood or marriage to the individual or the attorney-in-fact. This form must be notarized.
- Durable Power of Attorney for Property: Allows the individual to name an attorney-in-fact or agent to make complex asset transfers or conveyances or acquire, convey, sell or transfer oil and gas mineral rights, oil and gas royalties, real estate, stocks, bonds, annuities, etc. Requires two witnesses, eighteen years of age or older, who are not named in the individual's will and not related by blood or marriage to the individual or the attorney-in-fact. This form must be notarized.
When to use it: Powers of Attorney should be considered when a person has capacity to give informed consent and wishes to choose someone they trust to make decisions for them in specific areas of life that pose a problem. It should also be considered when a person with capacity is in the early stages of dementia or some other progressive disorder, so that power of attorney can be established while capacity is still intact. Power of attorney is a less restrictive option to guardianship because it allows the person to maintain more rights and the person can revoke it at anytime (except after he or she becomes incapacitated). Note of caution: Powers of attorney are easily abused because there is no judicial oversight in the form of annual reporting as there is for guardians of the property.
ADVANCE DIRECTIVE FOR HEALTH CARE: The Oklahoma Legislature amended two laws in 2006 impacting end-of-life decisions making; the Oklahoma Hydration and Nutrition for Incompetent Patients Act and the Oklahoma Advance Directive Act. Consequently, a new Advance Directive for Health Care (Advance Directive) was issued. The Advance Directive is comprised of 3 sections: (1) Living Will, (2) Health Care Proxy, (3) Anatomical Gifts. The Advance Directive goes into effect when the attending physician and another physician determine that the individual is no longer able to make decisions regarding medical treatment and determine that the individual is terminal (death is expected within six months), persistently (long-term) unconscious, has an end-stage condition or other condition specified by the person, in which the person wants life-sustaining treatments or artificially administered nutrition and hydration provided, withheld, or withdrawn. Once the person is incapacitated, the health care proxy can make all medical decisions, including end-of-life. Signature of the form requires two witnesses, eighteen years of age or older, unrelated and not in a position to inherit from the individual. Notarization of the form is not needed.
When to use it: It's generally recommended that everyone have an Advance Directive because it allows a person to make their wishes known regarding end-of-life decisions. A guardian does not have the authority to sign one for his or her ward unless given authority by the guardianship court. An Advance Directive should be encouraged if the person can make his wishes known regarding the three sections included in the document. The individual may revoke the Advance Directive at any time. An Advance Directive may serve as a less restrictive alternative to guardianship if a person becomes incapacitated as it may make guardianship unnecessary.
TRUST FUND: Trusts can be established to serve many purposes, but an important one is the lifetime management of property of one who is or who may become incapacitated. Generally, trust funds are managed by another person or financial institution such as a bank. The trustee, who directly manages another person's funds, advises the individual about financially related matters, but has sole discretion regarding how to spend the money, and is obligated to do so on the beneficiary's behalf. Special or supplemental needs trusts and pooled income trusts are recognized under federal Medicaid and Social Security laws as permissible vehicles for managing the funds of persons with disabilities without that money being counted as an asset for the purpose of calculating the person's eligibility for these benefits.
When to use it: This option should be considered when a third party wishes to give money to the person, or when a person with a disability receives money, typically as a result of a legal action or settlement, and those assets need to be held without risking the person's public benefits. Trusts can be an alternative to guardianship of property because it places the management of assets into the hands of a trustee. It also protects an inheritance that was intended for the person with a disability from others who may try to contest the will or who may try to obtain guardianship of the person in order to access the inheritance. Only an attorney well-versed in Oklahoma's trust laws should be hired to set up a special needs trust because of the complexity of the law. If there is no appropriate person to serve as trustee there are trusts available to disabled Oklahoma residents, with moderate costs, which can provide professional management of trust funds.
CONSERVATORSHIP: If a person is unable, by reason of physical disability only, to manage his/her property and voluntarily consents to the establishment of a conservatorship and appointment of a conservator, a petition may be filed in district court. A conservator is not appointed unless the subject of the proceeding consents to the appointment. As implied, an attorney is retained and court action is required.
When to use it: A conservator has the same powers as a guardian of the property, but is less restrictive than guardianship of the property because the ward can end the conservatorship at any time. Therefore, it should be considered when a person is able cognitively, but unable physically, to manage his property.
VOLUNTEER ADVOCATE: A Volunteer Advocate is someone who assists the person in making decisions and supports the person in preserving her rights and obtaining necessary services. Such support may include advocating for the person, reviewing the quality of services provided, attending IP or other meetings, assisting the person with her finances, accompanying the person to medical appointments, and assisting the person to complete applications. The advocate is trained and certified by TARC, an agency that contracts with DHS.
When to use it: A Volunteer Advocate should be considered when there are no family members (or anyone else who isn't paid to be there) available to support or assist the person in decision-making.
Any and all written statements included in this document and oral statements made in reference to the information included in this document are not intended to be, and do not constitute, legal advice. The authors of this document are not attorneys, and cannot provide legal advice.