As elderly parents grow older, family members in the caretaking role might face important legal questions surrounding guardianship and alternatives to guardianship in Washington state. Likewise, if your disabled child will soon turn 18, you may also find yourself facing important legal questions surrounding guardianship and alternatives to guardianship.
A guardianship is an arrangement where a person is appointed by the court to make decisions for a person when the individual is deemed unable to make decisions for themselves. According to the U.S. Department of Justice, guardians can be family members (children, spouses, parents, or other extended family members), friends of the family, lawyers, and even professional guardians, who may be social workers or other professionals.
When a guardianship is established by the court, the appointed guardian has a fiduciary duty to the person who has been deemed incapacitated and their actions are subject to oversight. This means that the guardian must act in the person’s best interest, and when making decisions, must put the interests of the person they serve above their own. (There are also other types of guardianship that lie outside the scope of this article.)
Because a guardianship takes away a person’s fundamental right to make choices about their lives, guardianships are established in very specific and limited circumstances.
Common conditions where guardianship and alternatives to guardianship are considered is when a person is diagnosed with Alzheimer’s or dementia, when a person has an intellectual disability, is diagnosed with a serious mental illness, suffers a serious head injury, or is diagnosed with a substance abuse disorder. Some of these conditions allow family to plan (as in the case of an early dementia diagnosis, or the case where a disabled child turns 18), while other situations can arise suddenly and require a guardianship (as when a family member suddenly becomes unable to care for themselves due to an unexpected head injury or worsening mental health).
Guardianship is not an arrangement the courts make lightly, because guardianship can take away a person’s fundamental rights, including the right to marry, the right to decide where to live, and the right to make financial decisions.
There are three main types of guardianship arrangements:
- Guardianship of the person: a person who has been made guardian of a person has the right to make medical and health care decisions, decide on living arrangements, and more.
- Guardianship of the property: a person who has been appointed guardian of the property of another person can make financial decisions on another person’s behalf. Sometimes the courts grant only limited guardianship, specifying which decisions the guardian can make.
- Full guardianship: when the court grants a guardian the ability to make all personal and financial decisions on behalf of another person, this is known as full guardianship.
According to the Department of Justice, guardianship should be seen as a last resort. Guardianship takes away a person’s fundamental rights and, in many instances, alternatives to guardianship can help families and caretakers ensure that a loved one is cared for without having to resort to a guardianship. That said, guardianships can sometimes offer protections not available through alternatives to guardianship.
Every situation is unique, and a guardianship lawyer in Seattle, Washington can help you and your family explore your options. Truce Law is a guardianship law firm in Seattle, Washington that can help you explore whether guardianship is right in your situation.
In this article, we’ll explore alternatives to guardianship. These include:
- Durable Power of Attorney
- Living Will & Mental Health Advance Directives
- Living Trust
- Joint Property Arrangements
- Supported Decision-Making
- Government Agency Representative Payee
- Assisted Living, Nursing Homes, and Community Residential Care
- Community-Based Support
- Informed Consent for Medical Decisions
- Next Steps
Durable Power of Attorney
With a durable power of attorney, an individual grants another person the ability to make financial or health care decisions on his or her behalf. There are different types of powers of attorney: general power of attorney, special power of attorney, and health care power of attorney.
A general power of attorney will give a person you appoint the ability to make financial decisions on your behalf, including managing your finances, running your business, handling real estate payments, making bill payments, managing your trusts, and handling other financial matters.
If you don’t want to give a person free reign to handle all your financial matters, a special power of attorney is another option. With a special power of attorney, you give an individual the ability to handle specific aspects of your life. For example, for estate planning or end-of-life planning purposes, you might not want your power of attorney to touch your trust, or you may not want a person with power of attorney to be able to sell your real estate, or use your money to make real estate purchases, but you might need a trusted loved one to access your bank accounts to pay bills and manage daily household expenses. A special power of attorney, in this instance, might make sense.
A health care power of attorney names a person you would like to put in charge of making medical decisions on your behalf should you become incapacitated and unable to do so.
You’ll want to discuss with your estate planning lawyer whether you want your power of attorney to be a durable power of attorney or a springing power of attorney. A durable power of attorney goes into effect the day you sign the document and would remain in effect should you ever become incapacitated. If a disabled child is turning 18 and parents decide to manage some of their affairs, durable powers of attorney might be an option, but you’ll want to speak to a guardianship or special needs lawyer first.
A springing power of attorney only goes into effect in certain circumstances. For estate planning purposes, some individuals set their power of attorney up so that it only goes into effect should they become incapacitated. With a springing power of attorney, your estate planning lawyer would specify exactly what incapacity means in the document.
According to the National Alliance on Mental Illness, durable powers of attorney have limitations. Guardians must report their actions to the court, and professional guardians are state regulated, while agents granted powers of attorney don’t have to report to the court.
Powers of attorney still grant families and individuals rights if an agent abuses their powers, but fighting these cases can be complicated.
Powers of attorney are generally best suited for situations where there is already established trust between the individual granting the power of attorney and the agent who will be the trusted person in charge of handling the person’s finances or medical decisions.
Living Will & Mental Health Advance Directives
A living will allows you to specify the kinds of medical treatments you want and don’t want. While a health care power of attorney grants an agent the ability to make a range of health care decisions on your behalf, a power of attorney won’t offer specific instructions about the health care services you’d like to receive should you become incapacitated or unable to make health care decisions on your own behalf.
A living will allows you to specify whether you want to be resuscitated, whether you want a feeding tube, a breathing tube, or ventilator. A living will also allows you to offer specific guidance about hospice or end-of-life care.
For estate planning purposes, many people use both powers of attorney and living wills (advance directives) to make their health care wishes clear, and to make sure that they have choice over who will be making their health care decisions.
According to the National Alliance on Mental Illness of Southwest Washington, another alternative to guardianship is a mental health advance directive. With a mental health advance directive, a person diagnosed with mental illness can make explicit their wishes about mental health treatment when they are stable. For example, an individual could give advanced consent for inpatient hospitalization, inpatient substance abuse treatment, or other mental health interventions that normally would require a court order, guardianship, or durable power of attorney to obtain.
If you have a disabled child with a mental health condition or substance abuse disorder and are concerned that you’ll lose the right to direct your child’s mental health treatment when he or she turns 18, a mental health advance directive is one way parents can continue to guide their children’s care, without resorting to the extreme solution of a guardianship.
Living Trust
If there are significant assets to protect, a living trust might be another alternative to guardianship, that can allow caretakers to manage a disabled person’s finances. With a trust, assets are managed by a trustee who acts in the best interests of the trust’s beneficiary. Disability or special needs trusts can be arranged so that disabled individuals can continue to access Medicaid, public assistance, housing and other services, while also still having access to income to help with out-of-pocket medical costs, transportation, and the cost of caretakers.
Trusts can be arranged to suit the needs of the individual and can be a way to help manage a disabled person’s finances, without going as far as establishing a guardianship. Yet, trusts require careful financial planning and can be costly to manage.
Joint Property Arrangements
Spouses may use joint property arrangements and joint accounts to ensure that their accounts are managed should one spouse become incapacitated or unable to make financial decisions. Joint property arrangements can include co-ownership of a home, car, or bank account. However, joint property arrangements made as an alternative to guardianship should be carefully considered.
Joint property arrangements don’t carry the same fiduciary duties as guardianship, power of attorney or trust, meaning that a person added to an account to help manage a person’s financial affairs essentially owns those assets, without having any duty to use the assets for a specific purpose or in the best interests of the other account owner.
Joint property arrangements can have an impact on estate planning and eligibility for public benefits. Individuals considering joint property arrangements as an alternative to guardianship for non-spousal family members may want to speak to a guardianship lawyer or financial planner about other options which may offer added protections.
Supported Decision-Making
Supportive decision-making (SDM) is another alternative to guardianship, if your loved one needs help making major decisions, but doesn’t want to give up the right to make decisions for him or herself altogether. With supportive decision-making, a disabled individual appoints a person (usually a family member or trusted friend) to help them make decisions and to help them communicate these decisions to medical providers and financial institutions. With supportive decision-making, a person might be given extra time to make choices, use assistive technology to communicate choices, or have a support person take notes and help the person role-play solutions and options. With supported decision-making, the person with the disability makes all decisions.
Supported decision-making is an alternative to guardianship that parents can consider if their child with a disability is turning 18. Some parents choose supported decision-making in combination with other protections, including durable powers of attorney, living wills, and other alternatives to guardianship.
Supported decision-making only makes sense if the person being supported can understand what they are agreeing to, and is able to make their own decisions, but only needs added support. With supported decision-making, a person still retains autonomy to direct their own relationships (including intimate relationships), decide where they want to live, and make decisions about elective medical procedures. Supported decision-making arrangements must specify how supporters will help the disabled individual, and may require additional documents, for example, releases of information so the supporter can access medical information, when necessary.
Government Agency Representative Payee
If the Social Security Administration or the Department of Veteran’s Affairs determines that a person receiving Social Security benefits or VA benefits cannot independently manage their benefits, the government agency may appoint a representative payee to receive benefits and use them to benefit the recipient. The representative payee can also be a family member or friend.
Representative payees are only allowed to manage benefit payments.
Other arrangements must be made if the disabled individual owns property or wants assistance with medical decisions.
Assisted Living, Nursing Homes, and Community Residential Care
An alternative to guardianship can be made through assisted living, nursing home, or community residential care arrangements. Many public housing options include shared housing arrangements.
Community residential care and assisted living provides the added support of meals and help with daily living for people who do not need institutional care.
Nursing homes provide skilled nursing care to individuals whose special needs warrant additional medical or nursing support.
Retirement communities offer increasing levels of care to elderly residents as more care is needed. Most residents start by living independently, until they need to move into assisted living facilities, or nursing facilities. Residents’ needs are monitored, and residents receive added care as it is needed.
Community-Based Support
Some individuals are adequately supported with community-based services. For example, automatic banking, direct deposit, or private money management services can help someone whose mental health has recently been stabilized put their affairs in order. These services might also help someone recovering from a substance abuse disorder or from a traumatic brain injury, as they transition to daily life.
Case managers or social workers can also help individuals in these situations access care and additional supports as needed while gaining independence.
Informed Consent for Medical Decisions
What happens if a person becomes incapacitated or seriously ill, and no alternatives to guardianship have been put in place?
Washington law RCW 7.70.065 guides who can make decisions for an adult when the adult is unable to make medical decisions on their own behalf. Physicians will first turn to the patient’s guardian, if a guardian has been appointed. If there is no guardian, doctors will then turn to the patient’s spouse or domestic partner.
Next, if the patient has children who are over 18 years of age, doctors will turn to these individuals to make decisions. If the patient is neither married nor has adult children, doctors can turn to the patient’s parents to make decisions.
Next, doctors can turn to the patient’s siblings, adult grandchildren, or other extended family members. If you and your family are all on the same page regarding end-of-life care and medical decision-making, Washington law offers guidance about how doctors can go about seeking consent for medical decision-making.
Yet, these laws may not be sufficient in some cases. If a person is in a mental health crisis, but isn’t deemed a risk to themselves or others, doctors may not be permitted to seek guidance on care from family members unless a durable power of attorney or guardianship is in place. The same could apply in a situation where a person has a substance abuse issue or where a person is in the early stages of dementia or Alzheimer’s, where issues of consent can be murky and may require court intervention to deem a person incapacitated.
When making plans and considering alternatives to guardianship, families need to consider their needs and whether additional supports will be required.
Next Steps
Guardianship is a major decision that can limit a person’s fundamental rights. Once a guardianship has been established, the courts would need to be involved to change or end a guardianship. Alternatives to guardianship offer individuals with disabilities or chronic illness greater autonomy, with support, and many disability rights advocates support alternatives to guardianship as the first choice, with guardianship used only as a “last resort.”
If you want to explore alternatives to guardianship, reach out to the guardianship lawyers in Seattle, Washington at Truce Law today.
This article is for educational purposes only and does not constitute legal advice. Every situation is unique. For guidance specific to your circumstances, consult a licensed family law attorney in your area.