Alternatives to Guardianship


Alternatives To Guardianship Video | Transcript

Guardianship law requires a person to explore all options before choosing guardianship.

Guardianship is not always the best option for a person in need. There are other formal and informal options for assisting a person without becoming a guardian. These options are sometimes called “lesser restrictive measures,” and can be used to prevent, limit, modify, or even end a guardianship.

If you came to this site because someone told you a person needs a guardian, you still must explore all alternatives. A guardian’s powers must be the “least restrictive form of intervention.”

There are many alternatives to guardianship. This page explains some options – but there may be others that can offer better assistance. Family, Friend, and Caregiver Resources can help you find information that is right for your situation. Additional information about services and supports in New York State are available for people of all ages and abilities. A good place to start is NY Connects. There is a directory that gives contact information for each county’s local NY Connects office.

 

Health Care Decisions

  • Family Health Care Decisions Act (FHCDA): New York law gives authority to specific people, including family and friends, to make health care decisions for a patient when the patient does not have the capacity to make decisions and did not leave instructions or appoint someone as a health care proxy (see below).
  • Advance directives: Blanket term for documents that provide guidance on health care decisions when individuals are unable to make decisions for themselves. Some people also include Powers of Attorney in the category of "advance directives."
  • Health Care Proxy: You can appoint a person you trust to make health care decisions to prepare for a time when you are unable to make or communicate these decisions.
  • A Living Will allows you to leave written instructions that explain your health care wishes, especially about end-of-life care.
  • A Do Not Resuscitate Order (DNR) lets you express your wish not to be given CPR (emergency treatment to restart your heart and lungs if your heartbeat or breathing stops.)
  • Medical Orders for Life-Sustaining Treatment (MOLST) are detailed documents showing what specific treatments and options a person wants if they need life-sustaining treatment.

Financial/Property Decisions & Money Management

  • Direct deposit: Setting up for income to be automatically deposited into a bank account
  • Automatic bill payment: Setting up automatic payment of rent, utilities, and other bills
  • Convenience/agency accounts: Ask your bank if they have convenience/agency accounts: you can select a trusted person to help with depositing or withdrawing money and writing checks. Unlike with joint bank accounts, this doesn’t give the other person “ownership” of the money in the account.
  • Representative Payees: Another person can apply to be the Representative Payee (often shortened to rep payee) to manage someone's Social Security or Supplemental Security Income (SSI). You can also reach out to pension and retirement benefit companies or other institutions that may have similar programs.
  • Trusts: A person can put their assets (money or other property) in a trust to give another person or organization control over those assets and how they are used. Some people use special kinds of trusts to help them stay eligible for benefits such as Medicaid. You can learn more about trusts by speaking to a lawyer or financial advisor.
  • Power of Attorney: Using a power of attorney (POA) document, you can list people who can make decisions about your property and money, and sign contracts. Those people can assist with tasks such as paying bills, managing benefits, and signing important paperwork. Note that if Person A gives Person B the power to make these decisions, Person A keeps the power to continue making those decisions as well. You can use an attorney to be sure the POA document is legal and effective. View More information about POAs and a Sample POA Form (June 2021)

Personal Care

  • Home care services/Home health aides: Aides can help with personal needs such as bathing, dressing, medication compliance, and cooking and may allow a person to remain in their home. These services may be available through insurance or private pay. Check with your provider.
  • Visiting Nurses: Can provide medical care and help with things like organizing and complying with medications. These services may be available through insurance if they are clinically necessary.
  • Social Adult Day Services: Structured programs that provide services in a safe setting to adults who need assistance with everyday tasks.
  • Adult Care Facilities/Assisted Living: Long-term residences providing non-medical services to adults who cannot live independently due to physical, mental, or other reasons. The Department of Health has more information on these options and a List of Providers.
  • Geriatric Care Managers: Geriatric care managers can be hired to assess and coordinate care for older adults. These services are often private pay. They can create short and long-term care plans, identify services and programs, coordinate home health aides, coordinate medical appointments, act as a liaison to families who aren’t geographically close to their loved one, and more.

Mental Health

Article 81 guardians are unable to consent to mental health treatment and the administrative of medication over a person’s objection. If someone believes involuntary treatment or involuntary hospitalization is necessary, there are options:

  • Assisted outpatient treatment (AOT): NYS has court-ordered assisted outpatient treatment (AOT). It is for certain people with mental illness who cannot live safely in the community without supervision. It allows a person or institution to petition the court for services where the goal is for them to live safely in the community.
  • Court Ordered Involuntary Hospitalization/Mental Hygiene Warrant: There is a process to bring someone to court who may have mental illness and is likely to be a serious harm to themselves or others. A judge may order a hospitalization of up to 72 hours for a person to be assessed for a temporary involuntary hospitalization.
  • NYS Office for Mental Health: There is a Mental Health Program Directory and a Directory to Mental Hygiene Departments in each county..

Informal Support

  • Community Support: Friends, family, neighbors, religious communities, or others can help in informal ways. This includes not only home activities like cleaning, dressing, and hygiene, but also arranging care, transportation, communicating, helping make decisions, and emotional support. These tasks could be assigned to different trusted people who could each take on the specific responsibility and help in a way that protects the person’s interests.
  • Community Services: Such as home-delivered meals, friendly visiting, senior centers. Many community services can be arranged through case management programs and local Area Agencies on Aging (AAAs). NY Connects is a good place to start.
  • Technology: Such as delivery services for groceries and other supplies; phone reminders for appointments, medication prompts, and other activities; Augmentative and Alternative Communication (AAC) tools to assist people who have little or no speech to communicate.
  • Environmental: For example, taking into consideration the person’s capacity at certain times of the day or making sure a person can make decisions without the influence of people who may not have their best interests.

Dispute resolution: Dispute resolution and/or mediation are ways to help people have difficult conversations and resolve disagreements, which may include how to help a person make decisions and care for family members. Facilitators and mediators can help people communicate and listen to each other’s concerns and, potentially, come up with alternatives to guardianship that work for everyone. There are Community Dispute Resolution Centers in every county in New York State.

Supported decision making: Supported decision making helps people make and communicate decisions with the support of trusted people in their lives. This can be done informally, but there are also formal processes available to people with intellectual and developmental disabilities to create an agreement with a trusted person on what decisions need support and how they want to receive that support. New York recently passed a law recognizing this as an alternative to guardianship.

Guardianship for a single purpose: While not an "alternative," a guardian can be appointed for a single limited reason such as signing a lease, immigration forms, or making a medical decision. This is called a special or single transaction guardianship. You can request this type of guardianship in your legal papers or at the hearing. After the issue is resolved or after a certain period of time, the guardian will return the court to update the judge and request that the guardianship end.

Legal Services (For matters other than guardianship): Some alternatives may require understanding legal information or the assistance of a lawyer. There are more legal service options on our resource page.These are some to get you started:

Family, Friend, and Caregiver Resources has more information about alternatives to guardianship and how to find local resources.