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://galligan-law.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”

Continue ReadingGuardianship Alternatives

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://galligan-law.com/category/senior-health/.

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

Continue ReadingCan Artificial Intelligence (AI) Detect Dementia?

Golfing May Reduce the Risk of Dementia

Leisure-time exercises like golfing may reduce the risk of dementia for older men according to a recent study.

Depending on who is reading this, you are either going to be thrilled with me, or angry at me for giving an excuse to someone.  But, we here at The Galligan Law Firm value the health of our clients, and with that, I want to share the results of this important study.

Older men now have a great excuse to spend more timing golfing.  A recent study suggests playing golf may cut the risk of getting dementia according to The Daily Mail’s recent article entitled, “Playing GOLF could cut your risk of getting dementia by a third, study claims.”

Men 60 years and older who regularly exercise at a ‘leisurely’ pace, such as golf, were up to 37% less likely to be diagnosed with the disorder, a Japanese study found. Experts say this may be due to the quick mental calculations done when lining up a putt or avoiding a bunker which may help prevent cognitive decline. Researchers also say the social aspect of playing golf with others may help stave off dementia, in addition to the benefits of physical exercise. However, this effect was not found for women who played more games of golf or other similar activities, like tennis or gardening.

Previous research has suggested factors like social isolation also increase the chances of getting dementia, with a lack of personal interaction with others a key risk factor. I’ve read other studies which examined towns with an abnormal number of individuals who reach 100 years of age.  Those studies similarly found that social interaction in those towns (small, tight-knit communities) encouraged long-term health.

In this study, researchers at the Center for Public Health Sciences in Tokyo reviewed survey data collected between 2000 to 2003 from 43,896 Japanese seniors. On average, they were aged 61. The survey participants were asked to detail their average levels of daily activity. Each activity was given a score, based on the energy expended doing a task. These scores were then compared to dementia diagnoses logged between 2006 and 2016.

A total of 5,010 participants were diagnosed with the condition during this time frame. The results showed no clear link between moderate to vigorous exercise and any reduced risk of dementia. However, further analysis of the same set of data showed men who did lots of ‘leisure-time’ exercise were at less risk of the disorder. Men in the top 25%— in terms of the amount of leisure-time exercise they carried out — were 37% less likely to have dementia three years after being surveyed. This risk reduction remained even after other risk factors like smoking status, alcohol intake and BMI were taken into account. Nine years after being surveyed, the more active men were 28% less likely to have a dementia diagnosis, compared to the least active.

Lead author Dr. Norie Sawada suggested leisure activities, like golf, may help older man stave off dementia through both the mental calculations required to play and the social aspect.  It is encouraging too that an active lifestyle (“leisure-time exercise”) can help without requiring extreme or vigorous exercise as we age.

Dr. Sawada also noted that ‘the social activity that accompanies leisure time physical activities, such as participation in golf competitions and enrollment in tennis circles, also has a protective association against cognitive decline and dementia.’

There is no precise way to prevent dementia. However, experts say that maintaining a healthy heart through regular exercise and eating healthy foods helps reduce the risk of the condition, and if golfing helps, so be it.

As to why women in the study did not enjoy a reduced dementia risk, Sawada thinks that they may already be getting similar benefits from their everyday activities, compared to men.

So, if there is one thing you do to help your health this weekend, let it be golfing!

Reference: Daily Mail (March 29, 2022) “Playing GOLF could cut your risk of getting dementia by a third, study claims”

Continue ReadingGolfing May Reduce the Risk of Dementia