Guardian Options for Families
As caregivers, we want the best for our youth as they transition to adulthood. Regardless of the situation, it can be challenging and emotional to know what is the best course of action with regard to helping our young adults make decisions. We want our loved ones to be independent, but we also want them to be safe. As caregivers, we must consider whether guardianship or alternatives to guardianship are appropriate. The best interest of the young adult is what should be taken into consideration.
Each individual is different and has unique needs and abilities. When trying to make decisions about our youth’s future, here are a few things to consider:
Can the young adult make decisions on their own? Can they navigate their own healthcare? Can they manage their own finances, housing, education, etc.? If the answer is yes, or yes with support, then Supported Decision-Making or another form of safety and support may be the best option. If the answer is no, full or limited guardianship in select areas where support is needed might be the better choice.
This article will outline alternatives to guardianship. For additional detailed information on guardianship or alternatives to guardianship, refer to the Utah Parent Center’s Transition University website, Guardianship Guidebook, or Choices handbook.
Supported Decision Making
Utah law does not currently recognize Supported Decision-Making as a legal, formal support option for adults with disabilities. However, it is a valuable tool to be used either alone or in conjunction with guardianship. This can allow for individuals to have as much self-determination for their life as possible.
Supported decision-making allows the person with a disability to make his or her own decisions with support from a trusted team. Supported decision-making allows for changes as an individual’s preference or needs change. The following 4 points describe supported decision-making in more detail.
- Supported decision-making is a way for young adults to plan their lives by collaborating with a team of trusted supporters in order to make their own decisions.
- The support team is built based on the individual’s desires and input.
- The individual is responsible for deciding the areas and types of support they feel are needed.
- The individual accepts responsibility and the consequences of their decisions. Their preferences are more important than their best interest.
Supporters are selected by the person with the disability. They can be family members, co-workers, friends, neighbors, and past or present providers. The person should select supporters who know and respect their will and preferences, and who will honor the choices and decisions the individual makes. Supported decision-making is flexible, and can be adapted to meet a person’s situation and needs. The process is unique and customizable for each individual depending on his/her wants, needs, goals, and dreams.
What characteristics should be present for supported decision-making to be effective as an alternative to guardianship?
- A person’s interest in self-determination and self-advocacy
- Possess self-motivation and the ability to follow through with goals and plans
- Ability to demonstrate good decision-making, which results in improved quality of life with assistance from team members
- Willingness to try new ideas and explore different possibilities
- Willingness to evaluate strengths and weaknesses when determining needed areas of support
- Willingness to work cohesively with a team of supporters to achieve desired goals
- Willingness to accept the responsibilities and consequences associated with choices and decisions made
- Willingness to put ideas down on paper and modify/adjust them as necessary with the help of support team members
Conservatorship is a legal status that is a companion to guardianship. It does not replace it. The court appoints a conservator or person to manage the financial and personal affairs of a minor or incapacitated person. A conservator may also serve as a guardian who is responsible for establishing and monitoring the physical care of the individual and managing their living arrangements.
A conservator may be appointed if the respondent is unable to manage their property and finances effectively because of:
- mental illness
- mental deficiency
- physical illness
- physical disability
- advanced age
- chronic use of drugs
- chronic intoxication
- detention by a foreign power
- some other cause
Additionally, the respondent’s property must be at risk of being harmed unless proper management is provided. The petitioner must be able to prove there is a need by a “preponderance of evidence.”
The Utah Courts define preponderance of evidence as: Evidence which is (even minimally) of greater weight or more convincing than the evidence which is offered in opposition to it. This is the standard by which a plaintiff must prove his/her case in a civil suit.
Power of Attorney
Another alternative to guardianship is a power of attorney document. A power of attorney (POA) is a legal document in which one person (called the “principal”) gives to another person (the “agent,” or sometimes called the “attorney in fact”) authority to act on behalf of the principal. The person who is the agent only has the authority to act in the areas outlined in the power of attorney forms (examples include: financial and/or medical,, but not over all the areas of a person’s life).
There are two types of power of attorney:
- Durable – effective on the date it is signed
- Springing – becomes active when an individual can no longer handle their affairs and may be active for a limited period of time and/or when outlined conditions have been met.
A power of attorney can be very broad, allowing the agent to perform a variety of tasks including:
- handling bank accounts
- selling real property
- running a business
- applying for public benefits
However, a POA can also be very limited and restrict the agent to one or more very specific tasks. For example, selling one specific piece of real property. The agent cannot use the principal’s assets in a way that is against the principal’s wishes.
A well-written power of attorney can be a helpful legal tool to allow someone else to handle a person’s financial matters without the need for more complex arrangements like a trust, a court-appointed guardian or conservator, which removes many or all of the person’s decision making authority. A well-written power of attorney can also help protect against possible financial exploitation and abuse.
A lawyer experienced in estate planning is the most appropriate person to write a power of attorney and give advice about what is needed in specific and unique situations. There are also several power of attorney forms available on the internet, but they may be too general for a specific circumstance. They may not follow the requirements of Utah law, or they may not protect against financial exploitation and abuse.
Benefits of a Power of Attorney:
- The agent is chosen by the individual
- Low cost or free in some cases
- No court time required
- Authority is outlined in the document
- The form is easily accessible
Limitations of a Power of Attorney:
- The principal has to have the capacity to understand what they are signing
- If the document is challenged, the court may be needed to enforce it
- The principal can choose anyone to be the agent, creating the possibility of being taken advantage of
- The document is usually over limited areas of the person’s life.
Every individual situation is unique. Caregivers should talk about safety options with their young adult. Teachers, professionals, and physicians can also be consulted for input if caregivers are unsure of what course of action to take with regard to guardianship or an alternative to guardianship. Ultimately, the goal should be for the young adult to have opportunities for independence and to live as much of a self-directed life as possible.
For questions or more detailed information, reach out to the Utah Parent Center. While the Center’s consultants are not attorneys and cannot give legal advice, they are available to connect you with resources, information, and training.