Exploring Alternatives to Guardianship

1. Exploring Alternatives to Guardianship • Rebekah Diller, Director, Guardianship Clinic, Benjamin N. Cardozo School of Law, New York, NY

2. Myths & Facts • Myth: Guardianship ensures individual will be provided with a range of services and benefits. • Fact: Guardianship is transfer of legal decision-making power to another individual or agency. The guardian may provide package of services or may not. • Myth: Guardianship will change or control behavior of incapacitated person. • Fact: Guardian can remove certain decisions (e.g. access to bank accounts) from an individual but guardian is not a free-floating monitor to change behavior.

3. Myths & Facts (cont’d) • Myth: Guardianship is a magic bullet that will ensure the individual is protected. • Fact: Guardian will be able to make decisions and seek legal remedies to protect the individual. • Myth: A guardian’s actions will always be closely monitored by the court. • Fact: Monitoring, especially for clients with low incomes and assets, is uneven and varies from case to case, judge to judge and court to court.

4. Exploring Alternatives Before Considering Guardianship • Guardianship deprives person of legal decision-making rights. • May be experienced as loss of dignity and independence. • Significant incursion on person’s liberty. • Person can lose the right to decide where they live, in some cases resulting in nursing home or other institutional placement over the individual’s objection. • Person can be deprived of making decisions about their medical care.

5. Exploring Alternatives (cont’d.) • Person can be deprived of access to basic information about their health care and finances. • Person often loses access to financial resources. For example, instead of paying bills and managing money, person is given allowance. • Many guardianship orders are “plenary” in nature. • Many guardianship orders are indefinite and outlast the crisis that gave rise to the guardianship.

6. Legal Obligation to Explore Alternatives • Under Article 81 of Mental Hygiene Law, guardianship must be last resort, only when other available resources won’t meet person’s needs. • Requirement to explore alternatives in order to limit the powers granted under guardianship to least restrictive alternative. • Once guardianship in place, ongoing obligation to assess whether alternatives suffice to restore rights or limit guardian’s powers. • Emerging understanding of “legal capacity” as a human right. CRPD Article 12 – state must create new alternatives before taking away decision making rights.

7. Ensuring that Existing Alternatives are Truly Exhausted Strategy: Change the Focus How can I obtain a guardianship? What are you trying to accomplish?

8. Challenges • Often what needs to be accomplished involves intense legal or case management support and specialized expertise in wide variety of issues. • Examples from law school clinic practice: • Guardianship intake is often a solvable housing, benefits, advanced directives, health care or other problem. Someone has erroneously told prospective client that they need to become guardian of a loved one. • Have to be able to issue-spot in a range of areas.

9. Comprehensive Checklist of Alternatives • Advance directives (powers of attorney, health care proxies, living wills, “Ulysses agreements”) BUT require capacity to execute • Friends, family and peer support • Adult day care and multipurpose senior citizen centers • Case management/geriatric care management • Supported housing • Assisted living • Visiting nurses • Supported decision-making

10. Comprehensive Checklist of Alternatives (cont’d) • Home health aides • Personal care assistance (attendants) • Housekeeping assistance • Joint accounts • Supplemental needs trusts • Guardian ad litem • Representative Payee Programs (SSA, VA) • Adult Protective Services • Financial management 6

11. Guardian Usually Not Needed**but agency may tell you otherwise • Medicaid application • Interaction with home care agency • Fair hearing process and appeals • Public Assistance • Social Security • Application • Representative Payee • Limited HIPAA disclosures • Certain medical decisions within facilities (Family Health Care Decisions Act)

12. Creating New Alternatives In many instances, an institution or agency demands that a guardianship be commenced in order for individual to receive services, benefits, etc. that she is otherwise entitled to. Instead of protecting individual, guardianship is added obstacle in path toward getting services 8

13. Third-party demands for guardianship Examples: • Pension fund will not process widow’s benefits application because she cannot sign application; demands daughter commence guardianship. • Public benefit/housing program cuts off benefits because recipient cannot sign recertification papers; demands family commence guardianship. • Nursing home or hospital demands guardianship as condition of discharge planning. May be able to devise alternatives here.