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  4. Alternatives to Guardianship

Alternatives to Guardianship

The Administration for Community Living’s mission is to maximize the independence and well-being of older adults and people with disabilities. Being able to make decisions about one’s own life is a fundamental right and critical to community living. Yet many people with disabilities and older adults lose that right when they are put under guardianship, often unnecessarily when other less restrictive alternatives are available. We all need support making decisions at times throughout our lives. There are many options for creating an ongoing system of support that preserves maximum autonomy for individuals of all ages, with and without disabilities. ACL is proud to be a leader in exploring a range of promising models of alternatives to guardianship, including supported decision-making and other formal and informal arrangements.

What is guardianship?

Guardianship (also referred to as conservatorship in some states) is a legal process in which a state court finds a person incapacitated pursuant to state law and appoints someone else to make decisions on behalf of that person. State guardianship laws vary regarding the standards for imposing a guardianship and the protections afforded to someone over whom a guardianship is sought. Guardianships may be “limited,” meaning the guardian’s authority is limited to the areas of life in which the court finds the person is unable to make decisions and/or is limited to a certain time period. A guardianship may be “full” or “plenary” if the guardian is legally authorized to make all decisions on behalf of the individual. Regardless of whether a guardianship is limited or plenary, the guardianship limits the person’s self-determination and ability to make choices for themselves. These choices can include where to live, with whom to associate, the medical care to receive, whether or not to work, and even the right to vote.

What types of alternative informal and formal arrangements exist as alternatives to guardianship?

State laws generally only allow guardianship as a last resort and require the consideration of less restrictive alternatives. These alternatives can include a range of promising models, from supported decision making to other formal and informal arrangements. Unfortunately, in practice, some courts may not consider less restrictive alternatives to guardianship, and they impose guardianship frequently.

There are many alternatives to guardianship. Deciding which alternative is right for an individual will depend on the individual’s situation and desires. All types of alternatives to guardianship, first and foremost, are centered on the person in need of decisional support and enable the person to make decisions based on their values, priorities, and wishes, as well as their circumstances, preferences, abilities, resources, and life experience.

Supported decision-making or SDM is an alternative to guardianship where individuals retain their right to make decisions for themselves, with the support of trusted individuals they choose. Trusted supporters can be family, friends, neighbors, faith community members, affinity groups (e.g., cultural, ethnic, religious, LGBTQ+) and personal services (Source: ABA COLA, Supporting Decision Making Across the Age Spectrum, March 2020). The term SDM is most often used within the disability community, although other communities use different terms or phrases to define the same concept. The SDM model and tools are used to help people of all ages, with and without disabilities, to create personalized systems of support.

SDM involves tools that help individuals identify the types of help they need and how to go about getting that help. It recognizes that different people need different kinds of help. For example, some people may need support making financial or health care decisions, whereas others may need help deciding on housing or transportation. Some people may need help with many types of decisions, and others may need help with only one or two types. Some people need one-on-one support and discussion to make an informed decision and for others a team approach may work best. The SDM model can be tailored to help people find solutions for their specific needs.

SDM is person-centered – this means SDM solutions are based on the wants and needs of the individual receiving support. SDM keeps decision-making control in the hands of the individual by providing customized assistance in specific ways and in specific situations that are useful to the individual.

SDM can be formalized through legal documentation, kept as an informal agreement between the decision-maker and their supporters, or a combination of the two. A formal SDM agreement clarifies expectations for both parties by describing responsibilities. It explains the rights of the person being supported and protects their privacy by defining what information a supporter can and cannot access. A formal SDM agreement is a valuable tool that helps to inform others (e.g. service coordinators, doctors, lawyers) that a formal relationship exists. Find information about formal SDM in your state at this link https://youth-voice.org/a2g-in-your-state/..

Formal supports such as powers of attorney, advanced directives, and trusts are contractual or legal arrangements in which an adult authorizes a person to perform a specific task on their behalf through the execution of a legal document. These activities vary in terms of both when the agent is authorized to make decisions and the extent to which the agent can make decisions on the adult’s behalf. For example, an adult can specify in their healthcare power of attorney when their agent can make medical decisions for them (e.g., when they become incapacitated or immediately) and what types of decisions the agent can make (e.g., end-of-life decisions, comfort care).

It is critical that the adult trusts their supporter(s) to respect and honor their wishes, choices, and values before entering into legally binding agreements.

Examples of formal support for financial decision making:

  • Trusted person designations – Adult authorizes their bank or financial institution to contact supporter(s) if the adult is suspected to be a victim of financial exploitation
  • Direct deposit authorization – The bank account is owned by the adult and the adult’s supporter(s) can deposit money
  • Authorized signers on accounts – A bank account owned only by the adult and the adult’s supporter(s) can access the account
  • Social Security representative payee – Social Security Administration appoints a supporter to receive social security checks or SSI benefits on the adult’s behalf
  • VA fiduciary – The U.S. Department of Veterans Affairs appoints a person to receive VA benefits on the adult’s behalf after the VA determines that the adult is unable to manage their own financial affairs
  • Joint Bank Account – A bank account is owned by both the adult and their supporter(s)
  • Durable Power of Attorney/Financial Power of Attorney – Adult authorizes supporter(s) to carry out and as designated specified financial decision immediately or at a specified future time the adult becomes unable to manage their finances
  • Trustee – supporter(s) is delegated the power to control the adult’s assets and property for the benefit of the adult

Examples of formal supports for healthcare decision making:

  • Advance directive – Adult authorizes certain healthcare decisions to be made for them when they are unable to make those decisions and may also specify a person to make all or specified decisions on their behalf
  • Living will – A type of Advance Directive where the adult specifies what treatments they do and do not want when they are unable to make decisions
  • Healthcare power of attorney - Adult authorizes supporter(s) to make specified healthcare decisions immediately or when the adult becomes unable to make those decisions
  • Healthcare surrogate or healthcare proxy under state law – A default decision maker under state law (e.g., spouse, parent, adult child, sibling) who can make healthcare decisions for the adult when they are unable to make or communicate decisions

Where can I find resources for more information about alternatives to guardianship?

The following links to resources will help you learn more about alternatives to guardianship, including supported decision making. Some of the links below were designed for professionals, such as lawyers, but may be useful to individuals who are investigating supported decision making as a preferred option.


Last modified on 09/10/2024


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