Alternatives to Guardianship | MAMH

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Whenever a person needs assistance with their personal and financial affairs, careful consideration should be given to less restrictive alternatives to guardianship.

Trusts. Trusts for the benefit of persons with disabilities should be established with the help of a lawyer experienced in wills and trusts and familiar with the law relating to both government disability benefits. Among other reasons, this is important because the trust may affect eligibility for certain public assistance programs, particularly Supplemental Security Income (SSI) and Medicaid.

Representative payees. A representative payee is a person or organization authorized to cash and manage public assistance checks, such as SSI and Social Security disability benefits, for a recipient deemed incapable of doing so by the local Social Security office. A representative payee only has authority over the particular benefit. The Social Security Administration has information on its website about representative payees. The Mental Health Legal Advisors Committee has a handbook on the rights of people with representative payees.

Durable Powers of Attorney (DPOA). A DPOA, which can be an alternative to conservatorship, is a legal document in which a competent individual can plan for a time when he or she may become incompetent. A DPOA gives authority to another individual to handle the financial affairs of the person who executes the document. It is usually prudent to seek the advice of an attorney before drafting a DPOA.

Health care proxies (HCP) and Medical Orders for Life Sustaining Treatment (MOLSTs). A HCP can be an alternative to guardianship at least as far as health care decisions are concerned. In a HCP a person, called the “principal, designates an “agent” to make all health-care decisions on behalf of the principal in the event he or she become incompetent to make them. The principal may give specific instructions to the agent or may exclude certain decisions from the agent’s authority. There are certain, mostly straightforward, requirements for a HCP to be effective.

A MOLST (Medical Order for Life Sustaining Treatment) is a standardized form that sets out the wishes of a person with advanced illness regarding life sustaining treatment.

Supported decision-making (SDM). SDM uses natural relationships and support to assist a person to make decisions and to avoid guardianship. Participants enter in voluntary agreements in which their supporters agree to assist the individual to make decisions. Nonotuck Resource Associates and the Center for Public Representation operate an SDM program in Massachusetts.

Shared or delegated educational decision-making. State and federal law provide that when students receiving special education services turn 18, as adults, they have authority to make educational decisions. However, they may choose to share or delegate that authority with other adults (usually their parents). 34 Code Fed. Regs. 300.320(c) and 300.520 and 603 Code Mass. Regs. 28.07(5).