What Are the Alternatives to Guardianship?

Alternatives to Guardianship Explained

If you can receive important information and use that information to safely make and communicate decisions about your life, you probably do not need a guardianship. By using the guidance, advice, and support that is offered through the various alternatives to guardianship, you can keep your freedom to live as independently as possible. There are many different alternatives to guardianship that can be put into place to assist you with understanding all the risks and benefits attached to the decisions that you make about your life. Below are several examples of alternatives to guardianship.

Supported Decision-Making

Supported Decision-Making is a process that we all use to make choices in our lives. Everyone needs help making decisions every day. If someone we want services from used a specialized term for their business or procedure, it would be very hard to understand, almost like a foreign language. For example, a car mechanic telling you about an “OEM part” or the “catalytic converter,” or a doctor recommending a “CAT Scan.” So, we ask for help from friends, family members, advocates and any other trusted person to help us understand. Once we get the information about what’s going on and what we need to do, we can make a good decision. This is Supported Decision-Making.

See the What Is Supported Decision-Making? page for more information.

Advance Directives

Below are several types of advance directives.

Living Will

A Living Will is a legal document[1] that expresses a person’s wishes regarding the providing, withholding, or withdrawal of life-prolonging procedures in the event of a terminal condition, an end-stage condition, or a persistent vegetative state.

Health Care Surrogate

A Designation of a Health Care Surrogate is a legal document that gives permission to another person, known as the surrogate, to receive an individual’s health information and make healthcare decisions for that individual. The Health Care Surrogate serves as preparation in the event the individual is no longer able to physically or mentally or does not want to make their own informed healthcare decisions. The writing can provide for this authority to take effect immediately, or upon the legal determination of incapacity.

Health Care Surrogate often gets confused with Health Care Proxy. A health care surrogate is chosen by the person in advance and is declared in a written document signed before two witnesses. A Health Care Proxy is a person who, by law, has the authority to make decisions for a person deemed incapacitated[2] when the person deemed incapacitated did not choose a surrogate or write an advanced directive. Florida law specifies who will serve as proxy, in order of priority, starting with the person’s spouse.

The advantages of a Health Care Surrogate are:

  • It can be completed without an attorney;
  • The creation of a Designation of Health Care Surrogate and/or a Living Will is a great opportunity to use the Supported Decision-Making process to assist in making the adult’s wishes known for health care needs or advance directives.
  • The Designation of Health Care Surrogate Form provides for someone to speak on behalf of the adult in the event the individual is unable to speak for themselves.

Florida Statute §765.102 provides that “every competent adult has the fundamental right of self-determination regarding decisions pertaining to his or her own health, including the right to choose or refuse medical treatment.”

Florida Statute §765.203 – provides a Suggested Designation Form for Health Care Surrogates (adults)

Florida Statute §765.2038 – provides a Suggested Designation Form for Health Care Surrogates (minors)

Power of Attorney

A Power of Attorney is a legal documenwhere an individual—called a principal— gives someone else—called an agent—the power to act in their place, without the principal losing their right to act on their own behalf. This means the agent has the authority to carry out certain authorized activities that the principal would otherwise do for themselves. For example, a principal may authorize an agent to write checks for them or deposit money into their bank account. In order for a Power of Attorney to be created, the principal must be able to understand how it can be used and the effect it can have on their property.

In Florida, a Power of Attorney must be signed before two witnesses and a notary public to be considered a legal, binding document. If the principal later becomes incapacitated, the Power of Attorney can be revoked, unless the principal specifically agreed to allow the Power of Attorney to continue after a finding of incapacity. This is known as a Durable Power of Attorney.

Durable Power of Attorney

A Durable Power of Attorney is a special kind of Power of Attorney because it remains intact, or “durable,” even if the individual who wrote it—called the principal—suffers mental incapacity in the future. A Durable Power of Attorney can, in addition to handling all financial decisions, authorize medical care. That includes consent to proceed with or terminate all medical and surgical procedures on the principal’s behalf, including an agreement that falls under the Life-Prolonging Procedures Act of Florida. Again, a Durable Power of Attorney lets someone act on an individual’s behalf if the individual cannot due to mental incapacity.

Banking Services can also be utilized to assist an individual with managing money. A Joint Bank Account or being a co-signor on an account as well as using Online Banking for direct deposits and Online Bill Paying are all examples of banking services that can be utilized to assist an individual who needs support in managing their finances.

Trust Accounts can also be utilized to assist individuals with disabilities in planning and maintaining an individual’s quality of life. Revocable Trusts and Irrevocable Trusts such as a Special Needs Trust are examples of trusts that can maintain one’s eligibility to received public benefits. Please contact an attorney that specializes in setting up trusts to get more information on how one can be administered to assist in protecting the best interests of an individual with a disability.

Representative Payee

If a person is receiving benefits from the Social Security Administration (SSA) and the SSA determines that the individual is unable to manage their finances, a Representative Payee can be designated to receive and disperse the benefits in the best interest of the beneficiary. The Social Security Administration determines if the individual needs a Representative Payee. The Representative Payee will receive the individual’s payments and use the money to pay for the individual’s needs. The Social Security Administration requires the Representative Payee to inform them about how the money is spent. If an individual believes that their Representative Payee is misusing or stealing their benefits, an investigation can be conducted to determine if a new Representative Payee is needed.

 

[1] A legal document is a writing that can be enforced in a court of law.

[2] If a court finds that a person does not have the ability to safely manage the things that belong to them and/or meet their basic health, safety, and self-care needs, the court will rule that this person is incapacitated.