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What are Least Restrictive Alternatives? 

The term "least restrictive alternative(s)" (LRA) refers to interventions or support systems that provide necessary assistance while minimizing intrusion on an individual's autonomy. This approach recognizes that incapacity is not always absolute and that individuals may be capable of making some decisions while needing support when making others. 

Note that both guardianships of the person (putting one in control of medical matters, acitivties of daily living, etc.) and guardianships of the estate (also referred to as financial guardianships or conservatorships) are, in and of themselves, LRAs vis a vis plenary guardianships, which are absolute encompass both personal and financial decision-making. Other common forms of LRAs include:

  1. Informal Family/Community Supports: Often the first line of assistance, this involves family members, friends, or community organizations helping with day-to-day tasks and decisions.
  2. Supported Decision-Making: This approach allows individuals to retain their legal capacity while receiving guidance and assistance from trusted supporters in making decisions.
  3. Powers of Attorney (POAs) and Advance Directives: These legal documents allow individuals to designate a trusted person to act on their behalf. A financial POA grants authority over financial matters, while a healthcare proxy (a type of advance directive) empowers someone to make medical decisions. Both can be tailored to provide broad or limited authority, allowing individuals to retain control over certain aspects of their lives while receiving support in others.
  4. Representative Payeeships: This option involves appointing a designated person to manage specific government payments (such as Social Security or VA benefits) on behalf of someone unable to do so themselves. It focuses solely on benefit management, so it is a less restrictive alternative than a full conservatorship.
  5. Temporary or Emergency Guardianships: The court grants This short-term arrangement in urgent situations to protect an individual's assets from immediate harm.

Who Considers LRAs (and When Must They Be Considered)?

The responsibility for considering Least Restrictive Alternatives (LRAs) falls on multiple parties throughout the process of determining appropriate support for an individual with diminished capacity:

  • The Petitioner: When seeking any form of legal intervention, the petitioner must proactively explore and document any LRAs that have been considered or attempted. This demonstrates to the court that more restrictive measures are truly a last resort.
  • The Attorney for the Individual: The attorney representing the individual in question has a duty to advocate for their client's autonomy and explore all possible LRAs that could meet their needs without resorting to more restrictive legal arrangements.
  • The Guardian ad Litem (GAL): If appointed, the GAL conducts an independent investigation into the individual's circumstances and must thoroughly consider and report on any viable LRAs.
  • The Court Visitor/Investigator (Jurisdiction Specific): Appointed by the court, the court visitor independently investigates the individual's situation. They interview the individual, family members, and relevant professionals, review records, and assess the individual's capacity and needs. Their report, submitted to the court, provides an objective perspective on the suitability of guardianship and the viability of LRAs.
  • The Court: Ultimately, if legal proceedings are initiated, the judge has the final responsibility for determining whether more restrictive measures are necessary based on all the evidence presented, including information about LRAs, before making a decision. 

It should be noted that the consideration of LRAs extends beyond initial guardianship determinations because courts must periodically review guardianship cases to assess the continued necessity of such arrangements and explore the potential for transitioning to less restrictive measures if the individual's capacity improves. 

Example: Harry, a 78-year-old retired professor, has been diagnosed with a chronic illness that affects his cognitive abilities. While Harry is generally lucid and capable of making decisions, he experiences episodes of confusion and disorientation, particularly during flare-ups of his illness. These episodes can last for several days or weeks, during which he struggles to understand complex information, manage his medications, and make informed decisions about his medical care.

Harry lives independently, but his daughter, Linda, is increasingly concerned about his safety and well-being during these episodes of incapacity. She worries that he might miss necessary medical appointments, take his medications incorrectly, or make decisions that could jeopardize his health.

LRA Considerations

  • Petitioner (Linda): Linda is hesitant to pursue full guardianship of the person due to Harry's fluctuating capacity. Instead, she explores LRAs that would allow Harry to retain autonomy during his lucid periods while ensuring he receives appropriate care when incapacitated. She proposes a combination of a healthcare proxy and supported decision-making.
  • Attorney for Harry: Harry's attorney investigates the availability of supported decision-making services in their community and identifies a program that can provide Harry with trained facilitators to help him understand medical information and make informed decisions about his treatment.
  • GAL: The GAL interviews Harry's doctors and reviews his medical records. They confirm that Harry's capacity fluctuates and that he is at risk of making poor medical decisions during episodes of incapacity. The GAL also observes Harry interacting with the supported decision-making facilitators and is impressed with their ability to communicate effectively with him and respect his autonomy. The GAL recommends a limited guardianship of the person, authorizing Linda to make medical decisions only when Harry is incapacitated, and the continued use of supported decision-making services during his lucid periods.

Court: The court, after considering all the evidence and testimony, grants a limited guardianship of the person to Linda, with specific authority to make medical decisions on Harry's behalf only when he is deemed incapable of doing so himself. The court also orders that Harry continue to receive supported decision-making services to help him participate in his medical care to the greatest extent possible. Finally, the court also orders periodic reviews of Harry's medical condition, and, if his condition improves or stabilizes, the guardianship should modified or terminated, as appropriate.

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