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Christene (Chris) Krupa Downs
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Using the Least Restrictive Alternatives to Avoid Guardianship

Christene Krupa DownsReviewsout of 7 reviews
Christene “Chris” Krupa Downs
Rated by Super Lawyers


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guardianship

Creating a Texas guardianship is necessary to protect an individual who cannot care for or protect themself. This situation can occur when a person has a mental deficiency, sustains an injury following an accident, experiences memory loss due to old age, or has had a traumatic brain injury. When a guardian is needed, there are means to make it as least restrictive as possible, and those are the measures and programs that should be used in that case. The least restrictive means and alternatives to a guardianship allow the individual who is the subject of the guardianship to retain some degree of independence.

Everyone wants to have a high quality of life, and that can occur when a person still has the ability to make some decisions for oneself. For example, if it is possible to allow a person to keep an aspect of autonomy, the perception of freedom and “living” as wanted allows the individual to retain a high-quality life going forward. Our society is based on maintaining and respecting every individual’s civil and legal rights. This includes encouraging people to have their:

  • Independence
  • Freedom
  • Self-determination
  • Self-motivation 

Preserving these freedoms allows a person to stay as independent and self-caring as possible during the transition to a guardianship.

What Are Some Alternatives?

Alternatives to full guardianship may include hiring or arranging for a money manager to help the individual pay monthly bills. People on a fixed income can get help to manage their budgeted funds and keep their financial affairs in check. If someone is appointed a bill payer, it will help the client pay bills on time each month and ensure that the Social Security benefits or federal aid checks are handled properly for the person’s expenses and personal needs. Another way to help a client with financial issues is to have a dual signature bank account. This allows someone in a position of trust to sign off on important bill paying or funds management.

Power of attorney can be used to help a client who needs extra help managing general legal affairs. The power of attorney can be used to give someone the authority to act as attorney-in-fact for an individual under guardianship. The power of attorney can be applied to:

  • Access a safety deposit box
  • Sell, maintain or lease of real estate
  • Maintain financial investments
  • Make mortgage payments
  • Prepare federal and state income tax returns
  • Buy insurance for the individual’s benefit
  • Disclaim an inheritance (all or part)
  • Transfer property as a trustee
  • Initiate a startup business
  • Settle a lawsuit
  • Vote at corporate meetings
  • Employ lawyers, accountants, or other professionals for the estate
  • Apply for benefits in governmental programs

In addition to Power of Attorney, an alternative to guardianship is a Supported Decision-Making Agreement. This type of agreement allows individuals with disabilities to make their own decisions with the help of a supporter, such as a parent, allowing them to maintain their independence and develop as decision makers.  For a Supported Decision-Making Agreement to be a viable less restrictive alternative to guardianship, the supported person needs to understand their responsibilities, options, and consequences of their decisions, and be able to actively participate in the decision-making process. The supporter provides the support needed by helping the individual gather information, talk through options and choices, and communicating the decision to others. The idea behind a Supported Decision-Making Agreement is not to limit the rights of the individuals with disabilities, instead it is to empower those individuals and support them in knowing their rights and supporting them as they make decisions in their lives. 

It is important to remember every capable adult person likes to feel the joy of being independent for as long as possible. If it is impossible to allow the individual to remain independent, providing care in the least restrictive means is definitely the way to go.

If you have any questions, get in touch with a Texas estate planning lawyer to learn more about your rights.