GUARDIANSHIP & ALTERNATIVES
Alternatives
Many people think that guardianship is the best way to help adults with intellectual and developmental disabilities make important decisions, but the truth is that guardianship is often not necessary. In fact, WA State’s guardianship law requires considering alternatives to guardianship first.
Guardianship takes away the rights of people with IDD (including their right to vote) and can make it harder for your loved one to make important life decisions. Guardianship alternatives can provide a safety net of support while still ensuring rights are protected.
Some drawbacks to guardianship include:
It is expensive
It requires a lawyer
There are a variety of complex forms to fill out yearly
It invites the court into the life of your family
Once a guardianship is in place, it is hard to remove
It cannot prevent harm, abuse, or exploitation
Guardianships often wrongly assume people with disabilities cannot make decisions for themselves
For example, people with IDD may need support with healthcare, finances, future planning, or protection against exploitation. While in the past guardianship may have been expected, alternatives to guardianship can offer the same protections without removing individual rights.
Examples of guardianship alternatives include, but are not limited to:
Official Supported Decision-Making (SMD) Agreement
Power of Attorney
Representative Payee
ABLE Savings Plans
Special Needs Trusts
Vulnerable Adult Protection Order
Official Supported Decision-Making Agreement
Supported Decision-Making Agreements give individuals with developmental disabilities the ability to make their own choices and decisions, with support, while still retaining all their rights. A SDM Agreement Includes:
The kind of decisions the adult wants help with, including decisions about where they live, where they work, how they spend their time, or how they manage their health care and finances.
The kind of help the adult wants when making a decision, including help with gathering information, understanding options, or communicating their own choices.
The SDM Agreement can be shared with doctors, bankers, or salespeople, to show the person has the right to make their own decisions.
Can be used in tandem with other alternatives to guardianship.
Unlike a guardianship, A SDM Agreement can be changed or ended by the adult with a disability at any time.
An example of a SDM Agreement can be found here.
Power of Attorney
A power of attorney can be helpful to people with disabilities who want to choose a trusted person to act on their behalf when they cannot. A power of attorney may be given broad or limited authority to make decisions about the person's property, finances, investments, or medical care. 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 a power of attorney is given authority by the individual.
An individual can sign a valid power of attorney document if they understand what the document says.
A power of attorney cannot override the individual’s decisions.
There are different types of power of attorney, chat with your trusted professional on the one best for you!
For more information on the types of power of attorney, click here: Power of Attorney in Washington State: How It Works - NerdWallet
Representative Payee
Sometimes people with IDD, who receive government benefits, may need help with paying bills such as rent, food, utilities, and medical, while still saving funds for emergencies and recreation/fun. A Representative Payee is an individual or organization appointed by a government agency to receive government benefits on behalf of a person who needs help managing her or her own money.
Rep Payee agencies must complete an annual RP Report to prove where benefits have been spent. Certified RP agencies must be re-certified every year and are audited by Social Security Administration (SSA) every three years. RP agencies receive a copy of all correspondence from SSA, can assist with annual eligibility reviews for DSHS, SSA, Spokane Housing Authority, etc., and is your direct Social Security liaison.
This is a wonderful option for families who do not want to be a “banker” for their loved one with IDD and helps ensure that money is well managed and can be saved.
While there is a small fee for this service, it is reasonable and affordable.
For more information, please contact The Arc of Spokane at 509-328-6326 or email info@arc-spokane.org.
ABLE Savings Plans
Washington State ABLE Savings Plans allow people with eligible disabilities to save for their everyday needs and prepare for the future by helping them save over the $2000 income limit without losing their state or federal benefits. It empowers individuals with disabilities to save for qualified expenses and invest in their future!
Washington State ABLE Savings Plans are easy to open and simple to manage. Individuals can make direct contributions and can also make payroll contributions through the ABLE to Work program. Friends and family can also easily contribute to ABLE accounts.
For more information, click here:
Home - WA State ABLE Savings Program (washingtonstateable.com)
For more information, please contact The Arc of Spokane at 509-328-6326 or email info@arc-spokane.org.
Special Needs Trusts
Special Needs Trusts (SNT) also allow people with eligible disabilities to save for their everyday needs and prepare for the future by helping them save over the $2000 income limit without losing their state or federal benefits.
If you are the parent or caregiver of a loved one with a disability, ensuring your child is taken care of throughout their lifetime is very important, and leaving money for their care is a big piece of the puzzle. Many families of people with disabilities turn to trusts, specifically Special Needs Trusts (SNTs), to set aside money after they are gone.
Working with an attorney is often the first step in establishing an SNT. Professionals with experience in Elder Law, estate planning, and Special Needs Trusts have experience drafting language that can help ensure benefits are preserved and trust funds will be used in the way you, and your child, want them to be.
You can have both an ABLE Savings Account and a Special Needs Trust at the same time!
For questions and information on Special Needs Trusts, or other financial planning services, please contact: All Needs Planning – Powered by Caregivers
Vulnerable Adult Protection Order
While a guardianship cannot protect someone from abandonment, abuse, neglect, or financial exploitation, a Vulnerable Adult Protection Order may serve as the protection needed.
Family and friends can ask the court for a Vulnerable Adult Protection Order (VAPO) even when the individual being harmed is unable or unwilling to seek help. Other protection orders may apply even if the person is not a vulnerable adult. If granted, it can remove or exclude someone from coming near a residence, order them to not contact the individual, or just order them to stop the harmful behavior. If the VAPO is knowingly violated, and reported to law enforcement, it can result in a criminal charge.
For more information, please contact The Arc of Spokane at 509-328-6326 or email advocacy@arc-spokane.org.
Guardianship
While guardianship alternatives offer least restrictive supports, if you find that a guardianship is needed, it is important to note there are two types of guardians:
Certified Professional Guardian (CPG) – has taken training and is certified by the State of Washington to provide guardianship services for compensation. To learn more about CPG go to the site: www.courts.wa.gov/programs_orgs/guardian. The website includes information about duties and responsibilities of a CPG, qualifications to become a CPG, rules and regulations, standards of practice, and filing a complaint about a CPG.
Lay/Family Guardian – A person who is appointed by the courts. The court prefers to appoint a family member as guardian in most cases when there is a willing and able family member where there is not a conflict with the person who needs the guardianship. To learn more about the training required to be a lay or family guardian, visit: www.courts.wa.gov/programs_orgs/guardian/?fa=guardian.layGuardianship&type=training
The Guardianship Monitoring Program was created to improve the Court’s ability to monitor guardians’ handling of the ongoing care and financial affairs of the person under guardianship. You can visit their website at: https://www.spokanecounty.org/1162/Guardianship. Their office is located at 1116 W Broadway Ave. Room 200 Spokane, WA 99260 and can be reached by dialing 509-477-2622.
You can view the directory of WA State Certified Professional Guardians in Washington State Courts’ guardian portal and individually reach out to the professionals you are interested in speaking with: https://www.courts.wa.gov/guardianportal/index.cfm?fa=guardianportal.search
If you decide you need an attorney, Jonas Hemenway has offered to waive his $100 guardianship consultation fee for The Arc’s constituents:
Jonas J. Hemenway
Attorney at Gravis Law
Estate Planning, Elder Law, Probate, Guardianship
1309 W. Dean Ave. Ste. 100 Spokane, WA 99201
Email: JHemenway@gravislaw.com
Office: 509-608-3083
GravisLaw.com
Mark Iverson is also a great wealth of information regarding guardianship:
Mark Iverson
Law Office of Mark Iverson P.S.
921 W. Broadway Ste. 305
Spokane, WA 99201
509-462-3678
mark@adoptionlegalservices.org