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Alternatives to Guardianship

Guardianship should only be considered after least restrictive forms of support (alternatives to guardianship) have been determined unsuccessful.

Least restrictive alternatives to guardianship considers the needs of the individual and preserves their autonomy or independence.

You are encouraged to research or to seek expert help on any of the following alternatives to guardianship:

Medical and Mental Healthcare

Advance Health Care Directives (AHCD)

AHCD is a legal document focused on end-of-life medical treatment or life-sustaining health care decisions. An individual can leave instructions on these decisions or designate another person (family members, loved ones, etc.) to make the decisions on their behalf. The document requires witnesses and it is generally only effective when the individual is incapacitated.

Living Wills

A Living Will serves as a guideline to instruct the individual’s family members and doctors about their end-of-life medical treatment as well as other medical decisions, such as pain management or organ donation.

Last Will and Testament (Will) – means a legal document that an individual prepares to communicate, upon death, his or her wishes concerning the distribution of personal and financial properties. Without a Will, State law will decide who inherits properties and manages the estate.

Surrogate Decision-Maker

A surrogate decision-maker is authorized, by the Uniform Health Care Decisions Act (UHCDA), to make health care decisions on behalf of an individual. UHCDA governs how to designate a surrogate decision-maker if the individual has become incapacitated. An individual who is capable of designating a surrogate decision-maker may do so verbally or in writing.

Mental Health Treatment Guardianship

A Mental Health Treatment Guardian is appointed by the court and is given authority to ONLY make substituted decisions regarding mental health treatment (including psychotropic medications) for individuals who are determined by the court to lack capacity to provide informed consent.

Mental Health Treatment Guardianship appointments are not to exceed one year.

Money Management

Joint Checking Accounts

Joint checking accounts allow each owner shared access to withdraw/deposit funds and to close the account(s).  

Bank Account Signatory

A bank account signatory is similar to joint accounts, however, this type of account requires all transactions to have at least two signatures.

Individuals Indian Money Accounts

A program with the Bureau of Indian Affairs that manages an interest-bearing account on behalf of an individual who has money or assets held in trust by the Federal government.

Joint Property Arrangements

A property ownership in which two people equally own, share rights, and obligations of the property.

Representative Payee

An individual or organization, designated by the Social Security Administration, who acts as the representative payee of Social Security Disability or Supplemental Security Income for an individual who is not fully capable of managing their own benefits.

Fiduciary

An individual or entity that has been designated by the Veterans Administration (VA) to manage the beneficiary’s VA pension or benefits, ensure timely payment of debts, and utilization of funds to pay for daily needs on behalf of the beneficiary.

ABLE Accounts

An investment account with ABLE New Mexico that is available to eligible individuals who have disabilities. ABLE accounts allow individuals to save and invest money without disqualifying them for public benefits such as Medicaid and Supplemental Security Income (SSI).

Special Needs Trust

A specific type of irrevocable trust that allows an individual who has disabilities to protect and use their assets without disqualifying them for Federal and State public assistance or benefits.

Trusts

A third-party (trustee) fiduciary arrangement that manages and transfers investments, property, and other assets to the beneficiary (individual).

Personal Care and Decision-Making

Natural Supports

Persons who are not paid to support the individual and may include: family members, friends, and co-workers.

Case Management

A coordination of services to meet the needs of the specific individual. Such services may include health care needs, educational needs, housing and food assistance, as well as other needs defined by the family, case manager, social worker or anyone else involved with the individual.

Person Centered Planning

Person Centered Planning is a forum in which support systems who know the individual best can identify the needs and desires of the person and coordinate the delivery of services through a written plan so the individual can have the assistance that they need to live a safe, health, and happy life.

Shared Decision-Making

A type of decision making where the evidence and options are shared with the individual and the individual is supported in making informed choices.

Supported Decision-Making

A series of relationships, practices, arrangements and agreements designed to assist individuals who have disabilities to make and communicate to others decisions about their life.

Website: http://www.supporteddecisionmaking.org/

Supported Decision Making Brainstorming Guide

ACLU Tool: When Do I Want Support?

Powers of Attorney

Powers of Attorney are legal notarized documents identifying a person or entity to act as a designated decision maker (agent) for another individual (principal). Depending on the document, the agent may be authorized by an individual to make medical or financial decisions. The principal must have capacity before the creation of a power of attorney, and the document can be revoked at any time.

Durable Power of Attorney – means a legal document where the principal appoints an agent to manage and protect their money, property, and business affairs if the principal becomes disabled or incapacitated. 

Financial Power of Attorney – means a legal document in which a principal designates an agent to make financial decisions on their behalf.

Limited (Special) Power of Attorney – means a legal document that gives the agent the power to act on the principal’s behalf for specific purposes. The agent’s authority ends after their purpose has been completed or after a designated time period.

Medical Power of Attorney – means a legal document that gives an agent the power to communicate with the principal’s health care providers and make health care decisions on behalf of the principal in the event that they become incapacitated.

Springing Power of Attorney – means a legal document that grants the agent the ability to manage the principal’s money, property, and business affairs. This document will go into effect if an accident, similar event, or medical condition results in the principal becoming incapacitated.