Alternatives to Guardianship - What you need to know in NC
What is Guardianship?
Sometimes we can worry about balancing dependence and security for those we love. This might be an aging parent, an elderly neighbor with memory issues or a special needs child. In such cases, people might consider a legal option for supporting such individuals with a tool called Guardianship.
Currently, the North Carolina Legislature has been considering a bill that will do a great deal to protect the autonomy of those most in need of some level of counsel and support. This bill modifies existing guardianship laws, clarifying that one does not lack capacity and does not need a guardian if he or she is able to manage less restrictive alternatives.
What is Supported Decision Making?
Among the less restrictive alternatives listed in the bill is “supported decision-making.” As both a system and a movement, the goal is to protect the agency and choice of the most vulnerable so that they can preserve their independence to the maximum of their ability while still getting the help they need. This approach began in Sweden and Canada in the late 1980s and in recent years has started to impact the United States.
When Sweden abolished full guardianship in 1988, they replaced it with a two-tier system. First, a court can publicly appoint a “god man” or good man who can make decisions for an individual, but only with their consent. If that is not sufficient, the court will appoint an administrator who may act on behalf of the individual only for specified needs, rather than in every domain of the individual’s life. In Canada, the most famous implementation of the “supported decision-making” concept is the British Columbia Representation Agreement Act. Slightly different from a Power of Attorney, which appoints someone who may make financial decisions for you, a representation agreement allows individuals to help guide decision-making for whatever needs are specified as well as make decisions on behalf of someone unable to do so.
What are the areas that you can offer support?
But how can the new laws implement supported decision-making here in North Carolina? First, as we look at the situations we are dealing with, we can identify and name the distinct life domains where support is needed. Next, in conversation with the individual in need, we collaboratively determine the most essential and desired areas of support. We can seek out trustworthy individuals who are able and willing to provide that support. Finally, we can establish a supported decision-making plan in writing so that everyone is clear on their role and responsibilities. The areas of counsel may include the following tools:
Joint Bank Account
Living Trust
Special Needs Trust
Representative Payee for Social Security Benefits
Fiduciary Representative for Veteran’s Benefits
Power of Attorney
Healthcare Power of Attorney
Living Will or Advance Directive
With a legal circle of security in place, older adults in particular stand to benefit in several ways. First, the supported decision-making approach of the current bill under review limits assessments of mental capacity as a way to restrict an individual’s legal rights to make decisions. This is especially helpful because assessments of mental capacity can often be highly subjective. This also reduces the institutional practice of pushing older adults into guardianship with a claim against their ability to comprehend financial and medical decisions. Such laws can compel legal, healthcare and social services to reserve the removal of decision-making rights as a last resort.
Understanding current laws around these sensitive issues can be helpful as families navigate all of the situations that arise. Planning ahead with a trusted attorney can help build a circle of security with a set of strong legal documents and a personal plan that reflect your wishes. Remember that the team at Hillsborough Wills & Trusts has the expertise to help you create an Estate Plan that meets your specific needs with the most up to date legal tools and perspectives.
Call us for a free consultation at 919-245-8440 or contact us today.
