Guardianship & Alternatives to Guardianship
If you are concerned about what to do when your child turns 18, you are not alone! Even if your child has significant disabilities, you will no longer have the authority to make legal decisions on their behalf. It is best to consider guardianship and alternatives to guardianship before your child turns 18.
When petitioning the court to become a guardian, the category and scope of guardianship must be identified. The categories include, Guardian of the Estate, Guardian of the Person, and Guardian of the Person and Estate. The scope of guardianship includes limited and full guardianship.
Guardian of the Estate
A Guardian of the Estate is responsible for the person’s property and finances. The guardian keeps a comprehensive inventory of everything the individual owns, purchases, and receives. Whether this is from employment, social security, or a friend or family member, everything must be closely accounted for as the court will require an annual review of income and expenses supported by records and receipts.
Guardian of the Person
A Guardian of the Person creates a care plan to meet the person’s physical, mental and emotional needs. The care plan will identify needs and explain how they will be met. The care plan must be submitted within the first three months of being appointed and is reviewed annually thereafter.
Limited guardianship grants the guardian the authority to make specific decisions identified in a court order. This then allows for the person with disabilities to keep the rights not granted to the guardian. Courts can appoint limited guardians to people who can care for themselves in some key areas, but not others. For example, a person may be able to live independently, but not be able to make decisions about their health.
Full guardianship gives the guardian the authority to make all decisions (healthcare, housing, financial) on the person’s behalf. There are many self-advocates and disability organizations that oppose full guardianship. However, if it is no longer deemed necessary, any party can request termination of guardianship at any time. Informing Families states: “Full guardianship denies a person significant rights, which may include the right to vote, marry, get a driver’s license, enter into contracts, or decide who will provide care. It should be entered into only if alternatives to guardianship, or limited guardianship, are not sufficient.”
Alternatives to Guardianship
Many people think that guardianship is the best way to help adults with intellectual and developmental disabilities make important decisions, but did you know that in Washington State, the law requires you to consider alternatives first? Alternatives include Supported Decision Making, informed consent, power of attorney, representative payee, and special needs trusts.
Supported Decision Making
Supported Decision Making (SDM) allows the person with disabilities to make informed decisions with the help of a loved one or friend. The designated person helps the individual understand the information presented to them, make a decision, and communicate the decision to others. According to Informing Families, “SDM ensures a person’s right to make their own important life decisions and to have their decisions respected with the support of people they choose.”
If an individual cannot make health care decisions by reason of intellectual capacity, Washington law can provide somebody else to form health care decisions on their behalf. Unlike Supported Decision Making, informed consent only refers to medical treatment and is authorized to certain people first. To review the order of priority, read RCW 7.70.065.
Power of Attorney
A power of attorney (POA) may be a legal instrument that provides one person the authority to act for another person. The POA can have broad legal or limited authority to form decisions about the principal’s property, finances, or medical aid. According to Alliance Law Group, “When in place, a person with power of attorney can perform a similar role to a person who has been appointed as a guardian. Overall, the power of attorney is also far more flexible, and the powers that have been granted can be restricted or individualized.”
A representative payee is a person or organization appointed to receive funds on another person’s behalf. This may include government benefits, employment earnings, or other alternative incomes. The payee’s responsibility is to use the money to pay the person’s bills first before giving them an allowance. The individual can then use their allowance to purchase snack food, videos games, or other non-essential items.
Special Needs Trust
A special needs trust can also be used as an alternative to guardianship. With a special needs trust, the person receiving funds from the account is limited to the types of purchases they can make. For example, a person could use the funds to purchase a wheelchair or therapy, but not housing or food. A special needs trust ensures that the resources are spent for the benefit of the individual. For a comprehensive list of items a special trust fund can be used to purchase, check out this article: What Can a Special Needs Trust Pay For?.
For more blog posts by SOAR Behavior Services, visit soarbehaviorwa.com/family-resources.