Guardianships Should Be a Last Resort – Consider These Less Draconian Options First

We all want to protect vulnerable people from harm, but taking away all their rights usually isn’t the place to start. Instead, there are several less severe options that could be the right way to go.

By Ryan Sellers, J.D.

published 7 July 2022

in Features

(Image credit: Getty Images)

We’ve all read stories about Britney Spears, Amanda Bynes, Brian Wilson of the Beach Boys and other famous people who lost control over their own lives. These talented and successful individuals were legally stripped of their autonomy, and another person was vested with the power to manage their finances, medical choices and other life decisions.

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Guardianships – also referred to as conservatorships – are drastic and invasive. They essentially strip subjects of control over their own lives and establish someone else as the decision-maker. For this reason, they require a rigorous showing of legal incapacity, as well as approval by a judge. In many jurisdictions, parties must establish a specific need for guardianship and demonstrate that other alternatives considered would not adequately protect the individual.

Guardianships should never be undertaken lightly. Once established, they can be extremely difficult to undo – witness the Britney Spears case – so other options should always be considered first

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Are guardianships ever good?

Guardianships do serve an important purpose: They ensure that individuals unable to handle their own affairs are not exploited or otherwise injured. They provide a safety net for estates whose heirs might otherwise recover nothing when a loved one dies. However, other legal vehicles can provide similar oversight with far less complexity.

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That being said, there are circumstances when a guardianship may be the best – or only – choice. Imagine, for example, an elderly gentleman with dementia who lacked the foresight to make adequate provisions in his will or trust for management of his affairs. Without a plan for oversight of his assets, he could end up jeopardizing the estate he intended to pass on to his heirs. Those heirs are often best situated to seek a court-appointed guardian who will ensure that their father or grandfather does not sign away his estate or compromise his physical well-being.

Alas, it is not uncommon for seniors who have amassed considerable wealth to assert a sense of entitlement as they increasingly lack the ability to look after themselves. Their children or other family members, left without a clear legal directive, may have little choice but to pursue a guardianship.

On the other end of the spectrum, imagine an older relative who left funds for a future generation without making provisions for oversight of those funds. If she passes away leaving minor beneficiaries, their parents must seek a guardianship so they can manage the money until the children reach the age of majority.

Less restrictive alternatives

Although laws vary from state to state, every state requires that less restrictive alternatives be considered before invoking a guardianship. These might include such vehicles as limited guardianships, powers of attorney or assisted decision-making agreements.

The benefit of these alternatives is that they don’t require court approval or judicial oversight. They are also much easier to set up and shut down. The standard for establishing incapacity is also less rigorous than the standard required for a guardianship.

Limited guardianships

Limited guardianships take away the subject’s right to make decisions, just as full guardianships do, but they are focused on specific aspects of the person’s life. A limited guardianship can be established for the purpose of managing the subject’s finances and estate, or it can be set up to control medical and health care decisions.

Such guardianships still require court approval and must be supported by a showing of incapacity. As with full guardianships, these more limited interventions will be continued for as long as the incapacity lasts and can only be dissolved through judicial processes. If practicable, limited guardianships are the preferred vehicle for protecting people and their property. Courts don’t want to restrain a person’s rights any more than is necessary.

Powers of attorney

Powers of attorney can be established for medical or for financial decisions. Far less difficult to set up than a guardianship, a financial power of attorney can be as simple as putting a second person on the bank account of an incapacitated or otherwise vulnerable individual. This second set of eyes ensures that financial decisions are well-considered and not harmful to the estate.

A medical power of attorney can enable the second person to obtain an injunction to protect the health and well-being of the subject, including by seeking a determination of mental incapacity. A durable power of attorney for health care matters invests the second person with the right to make medical decisions on behalf of the subject if or when they are unable to do so for themselves. Unlike a guardianship, powers of attorney can be canceled when they are no longer needed.

Assisted decision-making

An assisted decision-making agreement establishes a surrogate decision-maker who has visibility to financial transactions. The bank is notified of the arrangement and alerts the surrogate when it identifies an unusual or suspicious transaction.

Although such an arrangement does not completely replace the primary account holder’s authority, it establishes a safety mechanism to prevent exploitation or fraud. The bank is on notice that a second approval is required before an uncommon transaction can be completed.

Wills and trusts

Many of the issues for which guardianships are created can be addressed in a will or revocable trust. These important estate-planning documents allow individuals to map out what will happen in the event they become incapacitated or otherwise incapable of managing their affairs.

Trusts can avoid guardianship by appointing a friend or relative to manage money and other assets. A contingent trust will allow the executor to manage assets if necessary. For older individuals, it may be prudent to establish a co-trustee who can oversee matters and step in should the trustor lose the capacity to make good decisions.

Think ahead

Transparency is important. Before it becomes necessary for a guardian to be appointed to handle your physical or financial decisions, think about whom you would trust to act in that capacity and put it in writing. Let others know that if a guardian is needed, this is the person you want to serve in that capacity. A one-page directive will make your wishes clear and remove this important decision from a judge, who knows nothing about you or your priorities.

Delegate a second set of eyes now to support you down the road – preferably someone younger, whom you trust will bring a fresh perspective and a good understanding of money management. If you don’t think about these things now, the state will make the decision for you. Talk with your legal and financial advisers and create the documents now that will save your loved ones from having to seek guardianship for you in the future.

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Disclaimer

This article was written by and presents the views of our contributing adviser, not the Kiplinger editorial staff. You can check adviser records with the SEC or with FINRA.

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Ryan Sellers is a founding partner at Hales & Sellers PLLC. Sellers is a top-notch trial attorney, with a focus on disputes over wills, trusts and estates. Sellers also holds a certificate in guardianship matters and has experience in cases involving defamation and anti-SLAPP, real estate, business disputes, consumer claims and deceptive trade practices, and funeral home negligence.