Alternatives to Guardianship

Legally, anyone who is 18 or older possesses the right to make his/her own decisions (and live with the consequences), until an Alaskan court has ruled the person incapacitated and appointed a legal guardian to decide on his/her behalf. To parents who perceive their child as "vulnerable", guardianship seems a reasonable way to assure protection, and they often seek appointment as their adult child's legal guardian.

But now guardianship is being challenged by disability rights activists as an "intrusion into a person's basic civil and human rights and a legal process to be avoided" (Hoyle, 2001). Advocates recommend that families use guardianship as the last resort and carefully consider alternatives before their son or daughter lose their rights. In Alaska, the law says the court should consider alternative options to guardianship or conservatorship, if it will meet the person's needs.

Below are alternatives identified by the Public Guardian Section of Alaska's Office of Public Advocacy:

Alternatives to Full Guardianship

Partial Guardianship
- One who has special powers conferred by the court order that states explicitly what those powers are. Generally less powers than a Full Guardianship.
Conservatorship
- Less restrictive than a guardianship, and recommended if the person's needs are only financial in nature.
Advanced Directives
- Documents which state exactly which measures you want to be followed in the event of your incapacity or terminal illness.
  - Will: A document stating how you want your assets to be distributed among your heirs after your death.
  - Living Wills: A document by which an individual, while competent, may specify that in the event there is no reasonable expectation that he/she will recover from a terminal illness or vegetative condition, no extraordinary or heroic measures are to be used to prolong the act of dying; is only employed to prevent the use of life sustaining procedures.
  - Native Stock Wills: A Native Corporation will ask its shareholders to sign who and how stock should be distributed after death.
  - Power of Attorney (POA): Power granted to the attorney or attorney-in-fact to conduct any business which the principal could do himself, i.e. banking, real estate, stock and other business transactions, tax issues, claims, running the principal's business, etc.
  - Durable Power of Attorney (DPOA): A legal document used to give someone else or more than one person the authority to act on your behalf even after you are incapacitated.
  - Health Care Surrogate or Durable POA for Health Care: A durable power of attorney (DPOA) by which the principal may choose an agent to make health-care decisions after the principal has become incapacitated and is unable to make those decisions. They can receive medical information, consent or refuse to consent to medical care or relief from your pain, and must take all steps necessary to make sure your wishes are followed in the living will.
  - Declaration for Mental Health Treatment: AS 47.30.950-.980 allows a person to sign a Declaration for Mental Health Treatment to express their wishes about their treatment when they no longer can.
  - Five Wishes: A questionnaire that helps you express your wishes for your dying process. The five questions are: Who do I want to make care decisions for me when I can't? What kind of medical treatment do I want toward the end? What would help me feel comfortable while I am dying? How do I want people to treat me? What do I want my loved ones to know about me and my feelings after I'm gone?

Alternatives to Conservatorship

Representative Payee
- Person who receives federal (SSA, SSI) money on behalf of another if the recipient is unable to manage their own finances. Several agencies provide rep payee services in Alaska.
VA Fiduciary
- Person who receives federal VA monies on behalf of another if the recipient is unable to manage their own finances.
Bill Paying Service
- Some areas have agencies or banks that provide bill paying.
Direct Deposit and Direct Bill Paying
- Some banks provide direct payments for certain utilities, mortgages, and other vendors in addition to direct depositing.
Joint Checking Account
- A second signer on the person's bank account to assist if the person can't. Must be trusted.

The above information can be found online at the Office of Public Advocacy website http://www.state.ak.us/guardianship/alternatives.html

It is recommended that families consult with Office of Public Advocacy, Disability Law Center or a private attorney before deciding how best to support their adult child.

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