Alternatives to guardianships.

Q My son, Jeff, who has cerebral palsy and is mildly developmentally delayed, is about to turn 18. His high-school social worker asked if we had thought about a guardianship for him. We had not because Jeff is able to participate in making most decisions for himself. Are we wrong not to apply for a guardianship?

A It depends. A guardianship of the estate--also called a conservatorship--is a legal means of protecting minor children and incompetent adults who cannot make decisions and act on their own behalf due to a mental or physical impairment. It is, however, only one way of protecting a person with a disability.

You need to ask yourself why and for what purpose a guardianship is needed. Depending on Jeff's abilities, a less-restrictive and less-intrusive alternative may be appropriate for him.

Guardianship alternatives

For Jeff's medical care, or to advocate on his behalf in that arena, all that may be needed is either a durable power of attorney for health care (referred to as a "health care proxy" in some states) or a limited guardian of the person for medical purposes only.

A person with a disability, who is otherwise competent, can sign a durable power of attorney, authorizing a parent, sibling, or other person as an agent. Jeff's agent would be able to sign his name, represent him at meetings he cannot attend, and make decisions he feels are too complicated to make alone. If Jeff disagrees with an agent's decision, Jeff's own will takes precedence. He can revoke the power of attorney at any time.

If Jeff is unable to make day-to-day decisions independently or, due to his disability, is unwilling to accept the guidance and assistance you or feel is necessary, then you may want to consider a limited guardianship. This will protect Jeff from being exploited or from making dangerous decisions.

If your concerns are more financial in nature, possible alternatives to guardianship include:

1) a durable power of attorney for property is a legal document that allows Jeff to appoint an agent as the legal authority for his financial affairs. It is inexpensive to prepare and does not require court involvement or payment of a bond. Again, Jeff can withdraw the power of attorney or change the agent at any time. Because of this, it is not recommended for people either with a history of mental illness or who can be easily influenced by others. They may revoke the power of attorney just when it is needed most;

2) a limited guardianship of the estate may be appropriate if Jeff is capable of handling his income or a small savings account, but could be exploited if he had access to and control over a larger sum of money or assets. The sum or size of assets under control--whether all or part of a person's estate--is spelled out in the limited-guardianship document;

3) a trust is often a less-expensive and less-complicated alternative to a limited guardianship of the estate. A legal means of protecting assets for a person not capable of handling them competently, a trust would protect Jeff's assets without having him declared incompetent to handle his funds. A trust for a person with a disability should be established by an attorney familiar with governmental benefits so that the trust assets and/ or distributions do not jeopardize either SSI or Medicaid;

4) a representative payee--who manages governmental cash benefits--may be all that Jeff needs if an SSI check or other government cash subsidies is his only source of income or assets;

5) something as simple as holding Jeff's funds in a bank account that requires two signatures for withdrawals could also suffice.

Guardianship decisions

Guardianships--universal in the aspects of life over which they have decision-making power--require that a person be declared incompetent. In theory they are not irrevocable. It can be quite difficult, even impossible, however for a person declared incompetent to show competency and overturn the guardianship.

If Jeff is capable of making some decisions, one of these guardianship alternatives may be more appropriate at this time in his life. However, if Jeff is capable of making some but not all decisions on his own behalf, then you very well may need to petition the court for guardianship at his 18th birthday.

I commend you for not automatically applying for guardianship. While necessary for some people with disabilities, it is not needed for all. Parents need to carefully consider their child's strengths and weaknesses before deciding to seek guardianship.

Theresa Varnet is a partner with the law firm of Spain, Spain & Varnet, PC. of Illinois and Massachusetts. She is a Master's level social worker and parent of a daughter with tuberous sclerosis and mental retardation.

This material is not to be regarded as providing advice for any individual case. Because regulations vary from state to state, readers are reminded to consult appropriate national association or legal professionals before acting on the advice provided in this column. Send questions to: Future Planning, Exceptional Parent:, 555 Kinderkamack Rd., Oradell, NJ 07649.