As you get older, it’s important to ensure that sound decisions will continue to be made regarding your health, finances, and personal affairs if you become unable to do so on your own. While guardianship is one option, it can be restrictive and may not always be necessary. In Michigan, several less restrictive alternatives to guardianship are available that can help give you more autonomy while letting your designated family members assist with decisions you need help making.
At the Estate Planning & Elder Care Firm of Michigan, our experienced Howell elder law attorneys understand the challenges families face when a loved one gets older and needs more assistance. We can help you explore guardianship alternatives as part of developing an estate plan that prioritizes independence while also providing for sufficient support.
Supported Decision-Making Agreements as a Guardianship Alternative in Michigan
Supported decision-making (SDM) is a process that allows individuals with disabilities or who are elderly to make their own decisions with the assistance of trusted advisors. In Michigan, adults can create a supported decision-making agreement that names one or more supporters to help them gather information, understand their options, and communicate their decisions to others.
This arrangement allows you to control your life while receiving guidance from family members or another person you trust. Supporters can assist you with decisions related to health care, housing, financial matters, and other personal affairs. However, they cannot make decisions for you.
A supported decision-making agreement should be in writing and signed voluntarily by you and those you choose to support you. The agreement should specify the types of decisions the supporters can assist with and any limitations on their authority.
How Powers of Attorney Can Be Guardianship Alternatives
A power of attorney (POA) is a legal document that allows you to appoint someone you trust to make decisions on your behalf. A POA is an essential document in your estate plan. In Michigan, there are two main types of POAs that can be used as guardianship alternatives. They are:
- Durable power of attorney for finances. This document allows you to name a family member or other trusted person to manage your financial affairs, including paying bills, managing investments, and handling property transactions on your behalf. This type of POA can be drafted to take effect immediately or only if you become incapacitated.
- Durable power of attorney for health care. Also known as a patient advocate designation, a health care POA allows you to appoint someone to make medical decisions on your behalf if you become unable to do so yourself. The appointed person can access medical records, communicate with health care providers, and decide treatment options based on your wishes.
The elder care attorneys on our team can tailor your powers of attorney to your specific needs, including setting them up so that you retain the ability to make your decisions as long as you are capable and so that you can also revoke or modify your POAs at any time. We also recommend that you have a living will that informs your physician and loved ones of your preferences for medical interventions, such as feeding tubes or life support, if you become incapacitated or are in a coma.
Limited Guardianships as a Less Restrictive Option to Full Guardianship
Limited guardianship may be appropriate if you need assistance with specific decisions but are otherwise capable of managing your affairs. Limited guardianships are less restrictive than full guardianships and allow the court to grant decision-making authority only in the areas where it is needed.
For example, limited guardianship for financial matters may be appropriate if you need help managing your finances but can still make informed decisions about your health care and living arrangements. Your guardian's authority would be restricted to making your financial decisions.
To establish a limited guardianship, you or your guardian must file a petition with the probate court and provide evidence of your specific needs. The court will appoint a guardian ad litem to investigate the situation and make recommendations to the judge. If granted, the limited guardianship will be tailored to your circumstances.
Can a Trust Be an Alternative to a Guardianship in Michigan?
In some situations, a trust may be an appropriate guardianship alternative. A trust is a legal arrangement in which a trustee manages assets for an individual’s benefit or that of a named beneficiary. Several types of trusts may be helpful in long-term care planning:
- Revocable living trusts. You can create a revocable living trust and name yourself the initial trustee. You can also name a successor trustee to manage the trust assets if you become incapacitated or after your death. This arrangement allows for a smooth transition of control without the need for court involvement.
- Special needs trusts. If you want to take care of a loved one who has a disability and receives government benefits, a special needs trust can help provide for their supplemental needs without jeopardizing their eligibility for benefits. The trust can be funded with your family member's assets or with gifts from family members.
Trusts offer flexibility and can be customized to meet your unique needs. However, they can be complex to set up and administer, so it's essential to work with our elder care lawyers to ensure the trust is properly drafted and funded.
Let Us Help You Choose the Right Guardianship Alternative
At the Estate Planning & Elder Care Firm of Michigan, we take the time to understand your unique situation and help you weigh the pros and cons of each option. Whether you choose supported decision-making, powers of attorney, limited guardianship, or a trust, our legal team will work with you to ensure the necessary legal documents are correctly drafted and executed. We can also help you with the court process if judicial intervention becomes necessary.