While Guardianship may be the right choice for some people, the most common type of guardianship (Article 17A) is an all or nothing proposition, which essentially grants decision making over most of the major areas of a person’s life to the guardian. Only Article 81 guardianship can be customized, however it is a more time and cost intensive proposition that few people choose to embark on.
Often the concern that surrounds the decision to pursue guardianship is around protection. The person seeking guardianship wishes to ensure the physical and financial security of the person in question. However, there are alternatives, which ensure that a person can receive necessary supports in specific areas, without taking so much of their decision-making and independence away.
If financial security is a concern, having a representative payee is an option. In this way, any social security benefits a person receives would go to that representative payee who is entrusted to ensure appropriate spending on behalf of the person. This can still foster growth in the person, as the control can be shifted within the relationship without legal intervention. Joint bank accounts can also be created, which allows the account to be co-managed between the individual and the person supporting them. Power of attorney arrangements are also another option that allows a person to legally represent another person financially. It is entered into willingly by both parties and must be notarized by a notary public, but does not require a lawyer. It can also be revoked at any time, if either party no longer wishes to continue the arrangement.
Medical decision-making is often a significant concern. Health care proxies can be very useful in this area. They can be created so that the person elects a representative who will speak or consent for them surrounding medical decision-making if they are unable or don’t wish to. It does not remove the rights from the person to make their own decisions, but appoints a person who can legally speak for them based on their wishes or inability to do so. These are widely recognized by medical professionals as a legal document, however do not require the services of a lawyer to develop. Instructions and the form to appoint a Health Care Proxy can be found here: https://www.health.ny.gov/publications/1430.pdf
A newer area, which has some growing momentum in New York State, is “Supported Decision Making”. The thought behind this is that we all typically rely on this method for making decisions in our life. When making big decisions, we often ask for the opinion or advice of others so that we can make the best and most informed decision possible. Supported decision making seeks to build on this principle and formalize it into a written agreement. At this point in time, it is not legally binding in New York State, however it is being piloted downstate through collaboration by CUNY, Hunter College, NYSACRA and The ARC of Westchester. It is an area that Wildwood is learning more about and hopes to be able to formalize more in the future.