Guardianship Alternatives

Guardianship is often unnecessary or limited thanks to guardianship alternatives which include appropriate estate planning.

Guardianship is the court process by which a Judge appoints a person to make decisions on behalf of someone who cannot make them for themselves.  Guardianship is a very involved process which removes or reduces the legal autonomy of the individual and appoints a decision maker for that person.  Guardianship can be invasive, time-consuming and costly.  Although guardianship is sometimes necessary and beneficiary to the individual, many clients seek to avoid guardianship and, in fact, Texas (and virtually every state’s) law directs you to use less restricting guardianship alternatives where available.  The best options require preplanning however, so if you want to avoid the need for guardianship, you should consider some of the following guardianship alternatives.  See the article entitled “Guardianships Should Be a Last Resort–Consider These Less Draconian Options First” from Kiplinger for more. 

Durable Financial Powers of Attorney

Guardianship often is necessary when an elderly individual loses legal capacity due to dementia, Alzheimer’s or other conditions leading to cognitive decline.   In that case, the person cannot make their own financial decisions anymore, so a guardian would need to be appointed to manage their assets.

However, if an individual has a durable financial power of attorney (POA) in place, then this may not be necessary.  The POA names an individual to take financial action for you if you can’t yourself.  It is usually much better than guardianship as you are the person choosing who will act and you can set the rules as you want.  It is also substantially cheaper than guardianship litigation.  It is also one of the most important estate planning documents for this reason.

You can see here for a bit more on POAs:  https://www.galliganmanning.com/which-powers-should-a-power-of-attorney-include/

Trusts

Trusts are more than just will substitutes.  In this context, the trustee of the trust can control the assets owned by the trust.  So, if the person who created the trust becomes incapacitated, the successor trustee (again a person you choose) can take over and start controlling the assets.  This is often a major reason for clients who create revocable trusts later in life or who have concerns about long-term care or management of their assets.

Medical Powers of Attorney

This echoes the issues of the financial POA, namely that you can appoint a person to make medical decisions for you.  Now, the law does provide default decision makers for medical decisions makers, so this isn’t typically the reason for a guardian.  However, it too is a critical document for several reasons.  Among them, you may not want the default to be your decision-maker, it provides clarity of responsibility and lets the decision-maker know in advance what’s expected of them, and finally, avoids delay in a medical crisis when the documents have to figure out your family history to determine who a default decision-maker is.

Naming Fiduciaries for Minors

Another common guardianship scenario is leaving property to minors.  Although there are multiple state-based alternatives which might be helpful, such as creating UTMA/UGMA accounts (Uniform Trusts for Minors Act/Uniform Gifts to Minors Act), paying to a court registry or possibly to a parent of that child depending on the circumstance.  However, if these alternatives don’t work, you may need a guardian for the minor.

In any case where leaving property is intentional, such as in a will or trust, an easy solution is to establish a trust for the minor within your own documents.  This accomplishes several goals, but here, allows for an adult to hold the property for the child.  They can then spend the assets on their behalf, such as on education, daily living and so on,

Now, the above are mostly proactive steps, so these are what you can do now to avoid guardianship later.  However, if you or a loved one find yourself without sufficiently covering these concerns and contemplating guardianship, there are still some alternatives that might help or help reduce the scope of the guardianship.

Limited Guardianship

This a blog unto itself so this will be brief, but guardianship can be limited in nature.  Essentially, the powers of the guardian are limited so that the least autonomy is taking from the individual as possible.  This could mean that only assets are under the control of the guardian, or perhaps only to control some personal decisions such as medical decisions.

Joint Ownership

Some families take the step of making a family member a joint owner on a bank or other assets.  Now, I didn’t include this as a proactive measure because joint ownership has a litany of difficulties.  It includes the risk of creditor issues, potential concerns over gift making, disruption of the estate, plan, tax implications and lends to family disputes.  However, should you find yourself with the need for guardianship, this can be a less restrictive guardianship alternative.

Social Security Representative Payees

Social Security pays to an account with a designated rep payee for beneficiaries who can’t act for themselves.  So, on this particular account, the rep payee, which is typically a close family member, but could be someone else, is already authorized to control that particular asset.  So, this doesn’t typically completely avoid the need for a guardianship, but does mean that one account receiving income can be accessed and utilized for an individual without the intervention of a guardian.

Community Property Administration by a Spouse

This is distinctly a Texas solution, but we have community and separate property.  Community property is owned by the marriage, as opposed to the individual.  So, depending on the assets of the individual, her marital status and suitability of the spouse to do this, community administration might be a helpful guardianship alternative.

Guardianship Appointment

Although this isn’t a guardianship alternative, I’d be remiss if I didn’t mention it.  You have the power to name the person who you would want to be a guardian for you if guardianship is necessary.  We routinely prepare these for clients so that should guardianship be necessary, you’ve told the court who should do it.  They are very seldom necessary due to the estate planning we put in place, but it serves a belt and suspenders approach to ensure you have as much control over a guardianship process as possible.

Other Alternatives

There are other guardianship alternatives beyond what I included here, but key factor is that preplanning is the best guardianship alternative.  Talk with an experienced estate planning attorney to protect yourself or loved ones from having to pursue guardianship.

Reference: Kiplinger (July 7, 2022) “Guardianships Should Be a Last Resort–Consider These Less Draconian Options First”

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Can Artificial Intelligence (AI) Detect Dementia?

Doctors are beginning to apply artificial intelligence (AI) to detect and diagnose neurological diseases such as dementia.

Using artificial intelligence (AI), researchers at Boston University School of Medicine designed multiple computer models that used patient data to identify disease-specific signatures.  Essentially, they want to use AI to detect dementia and other similar diseases.

Yahoo News’ recent article entitled “AI may detect dementia just as well as doctors: study” says that from these signatures, the AI was able to discern which patients had normal cognition, mild cognitive impairment, Alzheimer’s disease and non-Alzheimer’s disease dementia.

The findings were published in the journal Nature Communications.

“Even in circumstances where a specialized neurologist or neuro-radiologist is too busy to directly provide a diagnosis, it is foreseeable that some degree of automation could step in to help, thereby enabling doctors and their patients to plan treatment accordingly,” said co-author Vijaya B. Kolachalama in a statement.

Past research showed that artificial intelligence is capable of discerning between absence and presence of a disease. The models developed were able to identify certain signals based on dementia related changes in MRI scans. The signals were then found to be associated with brain regions with microscopic evidence of degenerative tissue changes.

The researchers noted this unique capability much more closely mirrors real-world scenarios, since the computer focused on the source of the patient’s illness despite multiple possibilities. Dementia, or chronic alterations in one’s mental status, can be a hallmark of Parkinson’s disease, geriatric depression, or nutritional deficiency as opposed to just Alzheimer’s disease, Kolachalama explained.

“Our study is novel because, unlike work before it, we demonstrate a computational strategy for providing an accurate diagnosis during this diverse landscape of neurologic disease,” he said.

Patient data fed into the algorithms included results of functional testing, demographics, medical history and MRI scans, all of which can be collected during routine doctors’ visits. When compared with diagnoses made by neurologists and neuroradiologists, the researchers’ models met those of the experts. They now plan to conduct further research, including a prospective observational study in memory clinics to better compare the algorithm’s performance with that of clinicians.

“If confirmed in such a head-to-head comparison, our approach has the potential to expand the scope of machine learning for [Alzheimer’s disease] detection and management, and ultimately serve as an assistive screening tool for healthcare practitioners,” they wrote.

If this topic or other topics on senior health interest you, you can find more blogs on these topics at https://www.galliganmanning.com/category/senior-health/.

Reference: Yahoo News (June 21, 2022) “AI may detect dementia just as well as doctors: study”

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Value of Hobbies to your Health

Hobbies can greatly enrich our lives as we age, improve our well-being and increase life expectancy.

As we go into Labor Day weekend, I thought it might be nice to focus on a topic that isn’t about work.  It isn’t a task or something you have to do.  Instead, I going to focus on leisure.

Specifically, studies have shown that having hobbies can improve your well-being and even extend life expectancy, which helps lead to enjoyable golden years.  So with that, here are a few hobbies that may have a powerful impact on your health according to Money Talks News’ recent article entitled “7 Hobbies That Help You Live Longer”.

  1. Reading. Stress is a big source of health problems that shorten lives, and reading can provide a ready escape into a new world.  According to a study out of the University of Sussex, reading can decrease your stress levels by 68%. Reading improves your stress after only a few minutes because your mind focuses on what you are reading. This distraction eases the tensions in muscles and the heart.  This is a personal favorite hobby of mine and I would recommend it to anyone, even people who don’t think of themselves as “readers.”
  2. Gardening. A number of studies show that the physical activity of gardening — combined with being in a lush, green atmosphere — can enhance and extend life. People in their 60s with green thumbs decrease their risk of developing dementia by 36%, according to research from Australia.  I couldn’t find the citation for this, but I’ve been told that heart rates will reduce once you are outside in a green area after only 10 minutes.
  3. Cooking. Restaurant and processed foods are no good for your health. They can contribute to life-shortening illnesses, like diabetes and cardiovascular disease. However, people who make meals from scratch are much more apt to eat a healthier diet. The more often you cook at home each week, the higher you’ll tend to score on the U.S. Department of Agriculture’s Healthy Eating Index. University of Washington researchers say: “Home-cooked dinners were associated with greater dietary guideline compliance, without significant increase in food expenditures. By contrast, frequent eating out was associated with higher expenditures and lower compliance.”
  4. Listening to music. Research shows that regularly attending concerts can add years to your life. One study found just 20 minutes of listening can increase your sense of well-being by up to 21%. In particular, concert attendance increases:
  • Feelings of self-worth by 25%
  • Feelings of closeness to others by 25%; and
  • Mental stimulation by 75%.

The study concluded that such positive feelings could increase your lifespan by up to nine years. According to Fagan, “Our research showcases the profound impact gigs have on feelings of health, happiness and well-being — with regular attendance being the key.”

     5.  Volunteering. Helping others is another great hobby to extend your life, but only if your motives are pure. A study published in the journal Health              Psychology found that volunteering extends life, but with a strange caveat, according to the American Psychological Association:

“Volunteers lived longer than people who didn’t volunteer, if they reported altruistic values or a desire for social connections as the main reasons for wanting to volunteer, according to the study. People who said they volunteered for their own personal satisfaction had the same mortality rate four years later as people who did not volunteer at all, according to the study.”

Researchers think that proper motivation is key to getting the most out of volunteering because it buffers volunteers from stressors, like impingement on the volunteer’s time and lack of pay, which are part of doing good works.  I can say anecdotally that as people age and after they retire, sometimes they lack a focus and throw themselves into volunteering.  It isn’t a healthy approach, they are basically recreating their work experiences and the stress that comes with it.

       6.  Walking. This hobby can have a profound impact on your health, and those who take brisk walks might live up to 20 years longer than couch            potatoes, according to a Mayo Clinic study. Again, it’s brisk walking — at least three miles per hour or 100 steps a minute — is required to get the life-extending benefits.

       7.  Owning a pet. A lot of research has found that pet owners enjoy many health benefits from being around their furry friends. For example, a meta-  analysis of studies published between 1950 and 2019 found that dog owners had a 24% risk reduction for death from any cause. The benefit is even more pronounced for seniors with existing heart problems. The study authors believe walking a dog — (see #6) — may play a big role in these improved health outcomes. Another study in the Journal of Vascular and Interventional Neurology found that people who own cats have a reduced risk of death from heart attack or stroke.

Hopefully this weekend you’ll spend time on your hobby, or pick one of these as a new one!  Happy Labor Day!

Reference: Money Talks News (Aug. 20, 2021) “7 Hobbies That Help You Live Longer”

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