NOTE: The following information is intended to give an overview of alternatives to guardianship in Washington State. It is for educational purposes only and is not a substitute for legal advice. For advice on making legal decisions, please seek the assistance of an attorney.
It is the intent of the legislature to protect the liberty and autonomy of all people of this state, and to enable them to exercise their rights under the law to the maximum extent, consistent with the capacity of each person.
The legislature recognizes that people with incapacities have unique abilities and needs, and that some people with incapacities cannot exercise their rights or provide for their basic needs without the help of a guardian.
However, their liberty and autonomy should be restricted through the guardianship process only to the minimum extent necessary to adequately provide for their own health or safety, or to adequately manage their financial affairs. (RCW 11.88.005)
Many people think that guardianship is the best way to help adults with intellectual/developmental disabilities make important decisions. The truth is, guardianship is often not necessary. In fact, Washington state’s guardianship law requires considering alternatives first.
Before petitioning for guardianship, make a list of your concerns, such as money management, self-care, safety, or exploitation by another individual, and consider whether one or more of the following is a better alternative to guardianship.
Supported Decision Making
Supported Decision Making (SDM) allows people with disabilities to choose persons close to them to help them gather and understand information, make decisions, and communicate those decisions to others. It 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. Learn more about SDM in Washington State.
At age 18, decision-making authority shifts from the parent/guardian to the student. Within the education system, it’s called Transfer of Rights. The school district will notify the student and the parents when it transfers rights. In the past, many parents sought legal guardianship to retain educational and other decision-making rights; however that comes at a price for the individual who may lose many of their rights, such as the right to vote. Students over the age of eighteen who do not have a guardian may be certified as unable to provide informed consent or to make educational decisions, and have an educational representative appointed for them. Learn the procedures for appointing an educational representative under WAC 392-172A-05135.
To give informed consent for medical treatment, a person must have the mental capacity to understand the choices and make the decision.
If a person cannot make health care decisions by reason of mental incapacity, Washington law provides a way for someone else to make health care decisions on his or her behalf.
As with all other decisions, it’s important to always strive to give the individual the most decision-making authority possible; and, when not possible, to make decisions that the individual would choose for him or herself.
The following persons can provide informed consent on behalf of the individual in the following order:
- The guardian or parent if the person is under age 18;
- An individual to whom the person has given a durable power of attorney, including the authority to decide health care issues;
- Adult children (over age 18);
- Adult brothers and sisters.
Power of Attorney
A power of attorney authorizes an individual to designate others to advocate on his/her behalf, including making medical and/or financial decisions.
Unlike a guardianship (authority from the court) or a payeeship (authority from the funding source), a power of attorney is given authority by the individual.
An individual can sign a valid power of attorney document if s/he has the capacity to understand what the document says.
A representative payee is an individual or organization appointed by a government agency (such as SSA) to receive government benefits on behalf of an individual who cannot manage his/her money.
When friends or family are not able to serve as payees, Social Security looks for qualified organizations to be representative payees.
The payee’s responsibility is to use the benefits to pay for the current and foreseeable needs of the beneficiary and properly save any benefits not currently needed.
If you believe that your son or daughter is incapable of managing or directing the management of his or her Social Security or SSI benefits, call 1-800-772-1213 (TTY 1-800-325-0778) to request an appointment to discuss your concerns.
Special Needs Trust
Special needs trusts, such as the Developmental Disabilities Endowment Trust Fund, provide oversight and management of money held in the trust.
A special needs trust ensures that the individual’s resources are spent for the benefit of the individual.
Vulnerable Adult Protection Order
A Vulnerable Adult Protection Order (VAPO) can protect an adult with a mental or physical disability who is victimized by abandonment, abuse or financial exploitation.
You can obtain a VAPO from the court even when the individual is unable or unwilling to seek help.
An example of when a Vulnerable Adult Protection Order may be a good alternative to guardianship is if an interloper “moves in” with a person with a disability and starts taking their food and money. In a case like that, a VAPO may provide quick access to orders protecting him/her from further abuse or exploitation, even if the individual is unwilling to seek help.
Adult Protective Services also may assist.
Mandatory forms to use for these cases are on the court website.
Download a printable version of this information on Supported Decision Making/Alternatives to Guardianship.