One of the chief benefits of having a plan is that you know who will make decisions for you – both health-related and financial – should you become unable to do so yourself. Sometimes, however, that kind of proactive planning is not possible. A crisis like a car wreck or health emergency can happen even to those who think they are too young for estate planning. On the flip side, a progression into dementia can mean that it is too late for an individual to design a plan because he or she now lacks capacity to do so.
When proactive planning isn’t an option, many families think the only option is to turn to guardianship proceedings. These proceedings allow a court to name a person to step into the incapacitated person’s shoes, and become his or her surrogate decision maker. This is quite a dramatic step – as it often means the person can lose the right to vote, drive a car or even decide where he or she wants to live. Accordingly, Texas requires that less restrictive alternatives to guardianship have been examined and rejected before allowing a court to name a guardian.
One great option, particularly for individuals with certain disabilities that make it difficult for them to make complex decisions, is supported decision making. Under this approach, the person with disabilities enters into an agreement with someone who will serve, essentially, as his or her “advisor.” The agreement allows the adviser to receive confidential medical and/or financial information so that he can provide guidance and assistance. An advisor could sit in on doctor’s meetings to help the individual review all options, and decide on the best course of treatment. Or the advisor could receive information from brokerage firms to help the individual manage his or her investments.
The obvious benefit is that the individual retains the right to make decisions for him or herself, but he or she also has a second set of eyes to make sure that all options are considered. On the other hand, an unethical advisor could easily take advantage of someone with limited capacity. For supported decision making to be a possibility, however, the individual must be competent to enter into a contract. (This would not work for a person suffering from advanced dementia, for example.)
Another option – particular for individuals who are competent to make decisions for their day-to-day lives, but might need help managing their finances – is a management trust. Management trusts are established by court orders. A financial instruction serves as a corporate trustee and issues discretionary payments to the beneficiary for his or her health, education, maintenance and support. While this trust saves court time and the expense of guardianship proceedings, the trustee must still be compensated for its expenses and time spent.
Additionally, prior to naming a guardian, Texas statutes require that available supports and services have been evaluated and found to be inappropriate. These supports include home health aides as well as consideration of assisted living facilities and community services such as meal delivery and transportation services. Guardianship truly should be saved for those instances where less restrictive alternatives fail to protect the individual.