Less restrictive alternatives balance need with independence
By Nick Parker, Staff Attorney • Office of Court Services
By now, you have likely heard about the California case in which Britney Spears successfully petitioned the court to remove her legal guardianship. This case sparked an interest in guardianship across the country, including a discussion of ways to support individuals without a need for formal legal guardianship.
Many people, at one point in their life, will require assistance from someone else to help with healthcare, finances, or daily decision-making. This can include older adults, people who have acute health needs, and people with intellectual and/or developmental disabilities. For many of these people, reaching out for support can be viewed as an inability to manage their own lives, which is often used as a basis for legal guardianship. However, guardianship is not always the best way to help them receive the support they need.
There are many ways to assist the person if they require help. This can range from informal supports (like technological assistance, including having medication or groceries delivered to the home) to formal documents or arrangements (including Social Security representative payee or creation of a power of attorney). At the very end of the decision-making spectrum is legal guardianship.
Guardianship is one of the most restrictive ways of supporting another person because the guardian retains the power to make almost all decisions for the protected person. Since it has the potential to be so restrictive, the guardian must petition a court to gain that authority. Therefore, courts regard guardianship as a “last resort,” meaning that if another form of decision-making is available and would assist the protected person, a guardianship would not be approved.
In Indiana, all petitioners for guardianship are required to show ways that a “less restrictive alternative” is considered before seeking a full guardianship. Similar to a guardianship, a less restrictive alternative can help a person address their needs, preferences, and how they will receive support from others. Indiana law defines “less restrictive alternatives” as an approach to meeting a person’s needs that restricts fewer rights than the appointment of a guardian. This law is intended to keep guardianship as a last resort, therefore preserving autonomy and ensuring that guardianship is only used in the most appropriate cases.
A ”less restrictive alternative” can include any arrangement that satisfies the needs of the protected person, balancing their autonomy and preferences with the need for a supporter to have authority to carry out the person’s wishes. It can include formal documents like a financial or decision-making advance directive, such as a power of attorney or healthcare representative. The law also envisions aid through informal supports, such as technological assistance or other arrangements. Finally, a less restrictive alternative may include other appointments (like a representative payee) that will assist an individual with finances, healthcare, or daily decisions.
In Indiana, a guardianship petition must include a description of the petitioner’s efforts to use less restrictive alternatives before seeking guardianship including:
- The less restrictive alternatives for meeting the alleged incapacitated person’s needs that were considered and implemented
- If a less restrictive alternative was not considered or implemented, the reason for this; and
- The reason a less restrictive alternative is insufficient to meet the needs of the alleged incapacitated person
If a court determines that an individual needs a guardian, it can also limit the scope of the guardianship by issuing orders that encourage development of the person’s self-improvement, self-reliance, and independence. In addition, courts can hold review hearings on existing guardianship cases to review the continued need for guardianship, the qualifications of the current guardian, and to potentially incorporate less restrictive alternatives into the long-term plan for the person under guardianship. Anyone can request a review hearing, which is granted or denied at the judge’s discretion.
Guardianship and other less restrictive options are an increasingly important topic, especially with an aging Hoosier population and more people interacting with the guardianship system than ever before. According to the U.S. Department of Justice, whether under a guardianship or using less restrictive alternatives, “finding even small ways a person can be involved in decision-making is important in facilitating feelings of self-efficacy and preservation of a person’s autonomy.” Finding options that maximize autonomy is important to achieve this goal, and that is what less restrictive alternatives can do.