Supported Decision Making as an Alternative to Guardianship
Alternatives to
Guardianship
Supported Decision Making Plan – Implementation Tools
David Lord, Disability Rights Washington,
davidl@dr-wa.org
Eileen Schock, Elder Law Attorney,eschock@wavecable.com
WINGS 3/17/2016
General
information about the law will be provided
in this presentation through this
P
owerPoint,
written materials, and discussion.
The content of the presentation is
not
a substitute
for legal advice by an attorney. Please seek
representation by an attorney if you want legal
advice.
9/11/2024
2
This Presentation is
Not Legal Advice
Implementing a Supported
Decision Making Plan
Alternatives to guardianship are the “Tools” to
implement a Supported Decision Making Plan by
addressing identified needs of the individual.
The group will participate in a fact pattern
discussion later in presentation.
Support with Decision-
Making
Sometimes a person needs support in making a
decision.
Less often, a person
does not have the ability to make
a decision
, and someone else makes the decision: a
substitute decision-maker.
The substitute decision-maker’s task is to make a
decision consistent with what the person would
want if the person was able to make the choice .
9/11/2024
4
The law presumes all adults have the capacity for
decision making – including people with disabilities.
Decision making is a learned skill.
There are many ways to assist people with decision
making.
Basis for Supported Decision
Making
9/11/2024
5
LISTEN to the
“Incapacitated Person”
Identify strengths, skills, experience.
Identify what the person wants.
Ingram
case
102Wn.2d 827 (1984)
9/11/2024
6
Individual Choice and
“Best Interest”
The substitute decision-maker should identify the
preferences and choices of the person.
Where the preferences and choices can’t be
determined, the substitute decision-maker may
make a decision in the “best interest” of the person.
9/11/2024
7
Capacity is legal term for “competence.”
Incapacity means different things in different
situations: making a contract, health care situations,
financial decisions, assisting in own defense.
Lack of capacity – “incapacitated” may be partial or
full in guardianship.
Capacity and Incapacity
9/11/2024
8
Guardianship
Brief Overview
Legislative Intent
Legal Process
Incapacity
Participants in Guardianship Proceedings
Types of Guardianships & Guardians
9/11/2024
Intent of Guardianship Law
To protect the liberty and autonomy of all people, and to
enable them to exercise their rights under the law to the
maximum extent, consistent with the capacity of each
person.
People with incapacities have unique abilities and needs;
some people with incapacities cannot exercise their rights or
provide for their basic needs without the help of a guardian.
Liberty and autonomy should be restricted 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
10
Guardianship
A Legal Process
Potential Loss of Rights
Due Process
Court proceeding
Notice
Right to Attorney
Right to Bench or Jury Trial
Guardianship Proceedings
Incapacity as to Person
RCW 11.88.010 (1)(a)
Incapacity as to Person
A person may be deemed incapacitated as to
person when the individual has a
significant
risk of personal harm
based upon a
demonstrated inability
to adequately provide for
nutrition, health, housing, or physical safety.
Guardianship Proceedings
Incapacity as to Estate
RCW 11.88.010 (1)(b)
A person may be deemed incapacitated as to
the person's estate when the individual is at
significant risk of financial harm
based upon a
demonstrated inability
to adequately manage
property or financial affairs.
Guardianship Proceeding
Participants
Petitioner
Alleged Incapacitated Person (AIP)
Guardian ad Litem (GAL)
Attorney for AIP
Guardian
Judge/Commissioner or Jury
Types of Guardianships and
Guardians
Guardianship of Person
Guardianship of Estate
Guardianship of Person and Estate
Full or Limited Guardianship of Person and/or
Estate
Lay Guardians
Professional Guardians
Co-Guardians
Alternatives to Guardianship
(Tools)
Health Care and Personal Needs
Financial Needs
Protection Orders
Health Care and Personal
Needs Alternatives
A person must understand the following to give
“informed consent.”
‣
His/her health condition
‣
The proposed treatment
‣
The hoped-for results
‣
Possible alternative treatment
‣
Possible risks and benefits from treatment
‣
Consequences if not treated
Informed Consent - Health Care
Informed Consent - Health Care
9/11/2024
18
If an adult cannot give informed consent for medical, the law
(RCW 7.70.065) sets out a hierarchy for consent
:
Health care guardian
Agent with health care durable power of attorney (AIF)
Spouse or Registered Domestic Partner
Son or daughter (over age 18 - all must agree)
Mother or father (both must agree)
Brother or sister (over age 18 - all must agree)
Who Can Give Informed Consent?
9/11/2024
19
POLST
Physician’s Order on Life Sustaining
Treatment
Doctor’s Order
Patient (or representative)
and
provider
discuss and sign.
Health Care Directive
A document, signed by an individual, directing care
to be given or withheld at end of life
Permanent vegetative state or terminal
condition
NOT a Doctor’s order
Personal Assistance Devices
and Personal Assistants
Assistance with medication management,
errands, transportation, meals and other
needs.
Think “outside the box” – be creative.
Consider the
community of people
and
services that might provide assistance.
RCW 11.94 authorizes an individual to
designate others to advocate on his/her
behalf, including making medical decisions,
through a power of attorney.
9/11/2024
23
Power of Attorney
Financial
Medical
Power of Attorney
Durable Power of Attorney
9/11/2024
24
Different Kinds of Power of
Attorneys
Effective even when the person who signed
the durable power of attorney later becomes
incapacitated.
DPOA Form:
Washington Law Help
http://www.washingtonlawhelp.org/files/C9D2EA3F-0350-D9AF-ACAE-
BF37E9BC9FFA/attachments/392A5117-D581-FCE9-5EF2-E382E46B92AC/9900en.pdf
Durable Power of Attorney
9/11/2024
25
Power of Attorney
Vocabulary
Principal
Agent, proxy, attorney in fact
Fiduciary - Trust, Accountability
Health care, Financial
9/11/2024
26
Easy to create/little or no cost
Provides an advocate with authority
Can nominate guardian
Principal controls choices
Revocable
The agent is a fiduciary
Advantages of Power of Attorney
9/11/2024
27
No court oversight/possible abuse
Authority may be challenged
Must meet capacity requirement to sign
Disadvantages of Power of
Attorney
9/11/2024
28
At 18, a student’s educational rights are transferred
from the parents to the student. WAC 392-172A-
05135(1)(b); 34 C.F.R. § 300.520(a).
Students who hold their own education rights can
authorize any adult to make educational decisions
for the student by using a power of attorney. WAC
392-172A-05135(6).
9/11/2024
29
Special Education student, age 18:
Guardianship needed?
Where there’s a guardian, the guardian will represent the
student’s educational rights. WAC 392-172A-05135(4).
Students without guardians can be certified as unable to
make educational decisions WAC 392-172A-
05135(5)(a).
If this happens, the school district assigns an
educational rep. WAC 392-172A-05135(5)(b).
Certification of a student’s inability to make educational
decisions can be challenged at any time. WAC 392-
172A-05135(5)(c).
9/11/2024
30
Special Education student, age 18:
Guardianship needed?
Health Care and Personal
Needs Alternatives (cont’d.)
Specialized Directives (planning tool)
Mental Health Directive
Alzheimer‘s Disease and Dementia Mental Health
Directive
Supported Living Environments
Case Management
Financial Needs
Alternatives
Financial Needs
Alternatives
Financial Durable Power Of Attorney (planning tool)
Representative (SSA)
Protective Payee (VA)
Representative Payee
When an individual with disabilities receives money
or benefits from an agency and is not able to
manage his or her own money, a representative
payee may be appointed to be responsible for the
benefits, and to ensure they are used only for the
benefit of the person with a disability.
The payee is a fiduciary.
9/11/2024
34
Financial Needs
Alternatives (cont’d.)
Trusts (planning tools)
Living Trusts
Testamentary Trusts
Special Needs Trusts (SNT)
(Think outside the box – other appropriate alternatives
may be available to address financial needs)
Protection Order
Alternatives
Protection Order
Alternatives
Domestic and Criminal Protection Orders
Vulnerable Protection Orders (VAPO) RCW 74.34
Who can file for a VAPO
Who can be protected by a VAPO
Vulnerable adult
Two court hearings required
Protections available under a VAPO
Personal and Financial
Length of VAPO
Non VAPO Protection Orders
Group Discussion
Group Task: Analyze two separate factual scenarios
and, as a group, suggest alternatives for addressing
personal, financial, and safety needs
Review Fact Patterns:
Fact Pattern #1 - Younger Disabled
Fact Pattern #2 - Elder
Break into groups –Discussion
Group reporting of Alternatives
Conclusion
Resources
RCW 7.70.065 Informed Consent Statute
http://app.leg.wa.gov/rcw/default.aspx?cite=7.70.065
Alternatives to Guardianship for Adults (Washington Law Help
– Northwest Justice
Project)
http://www.washingtonlawhelp.org/resource/alternati
ves-to-guardianships-for-adults?ref=xsqY4
Powers of Attorney and Health Care Directives (Washington
Law Help – Seattle University School of Law & Northwest
Justice Project)
http://www.washingtonlawhelp.org/resource/questions-and-
answers-on-powers-of-attorney?ref=QsXy3
Representative Payee (Social Security)
https://www.ssa.gov/payee/
Resources (cont’d.)
VAPO
RCW 74.34 (VAPO) Vulnerable Adult Protection Order
http://apps.leg.wa.gov/rcw/default.aspx?cite=74.34.
110
VAPO Forms (Washington
Courts)
https://www.courts.wa.gov/forms/?fa=forms.
contribute&formID=70
Alzheimer‘s Disease and Dementia Mental Health
Directive (End of Life
Washington)
http://endoflifewa.org/alzheimers-
diseasedementia-advance-directive/
Resources (cont’d.)
Mental Health Advance Directives
Chapter 71.32 RCW
http://apps.leg.wa.gov/rcw/default.aspx?cite=71.32
)
Mental Health Directive Form
http://app.leg.wa.gov/RCW/default.aspx?cite=71.32.26
0
Resources (cont’d)
Disability Rights Washington
DRW Information Sheets
http://www.disabilityrightswa.org/tools-help-you/guardianship-0
Explore the concept of Supported Decision Making as an alternative to guardianship, addressing the needs of individuals who may require assistance in decision-making. Understand the importance of listening to the incapacitated person, identifying their preferences, choices, and best interests. Learn about the legal aspects of capacity and incapacity in decision-making processes.
Download Presentation
Please find below an Image/Link to download the presentation.
The content on the website is provided AS IS for your information and personal use only. It may not be sold, licensed, or shared on other websites without obtaining consent from the author. Download presentation by click this link. If you encounter any issues during the download, it is possible that the publisher has removed the file from their server.
E N D
Presentation Transcript
Alternatives to Guardianship Supported Decision Making Plan Implementation Tools WINGS 3/17/2016 David Lord, Disability Rights Washington, davidl@dr-wa.org Eileen Schock, Elder Law Attorney, eschock@wavecable.com
This Presentation is Not Legal Advice General information about the law will be provided in this presentation through this PowerPoint, written materials, and discussion. The content of the presentation is not a substitute for legal advice by an attorney. Please seek representation by an attorney if you want legal advice. 2 9/11/2024
Implementing a Supported Decision Making Plan Alternatives to guardianship are the Tools to implement a Supported Decision Making Plan by addressing identified needs of the individual. The group will participate in a fact pattern discussion later in presentation.
Support with Decision- Making Sometimes a person needs support in making a decision. Less often, a person does not have the ability to make a decision, and someone else makes the decision: a substitute decision-maker. The substitute decision-maker s task is to make a decision consistent with what the person would want if the person was able to make the choice . 4 9/11/2024
Basis for Supported Decision Making The law presumes all adults have the capacity for decision making including people with disabilities. Decision making is a learned skill. There are many ways to assist people with decision making. 5 9/11/2024
LISTEN to the Incapacitated Person Identify strengths, skills, experience. Identify what the person wants. Ingram case 102Wn.2d 827 (1984) 6 9/11/2024
Individual Choice and Best Interest The substitute decision-maker should identify the preferences and choices of the person. Where the preferences and choices can t be determined, the substitute decision-maker may make a decision in the best interest of the person. 7 9/11/2024
Capacity and Incapacity Capacity is legal term for competence. Incapacity means different things in different situations: making a contract, health care situations, financial decisions, assisting in own defense. Lack of capacity incapacitated may be partial or full in guardianship. 8 9/11/2024
Guardianship Brief Overview Legislative Intent Legal Process Incapacity Participants in Guardianship Proceedings Types of Guardianships & Guardians
Guardianship A Legal Process Potential Loss of Rights Due Process Court proceeding Notice Right to Attorney Right to Bench or Jury Trial
Guardianship Proceedings Incapacity as to Person RCW 11.88.010 (1)(a) Incapacity as to Person A person may be deemed incapacitated as to person when the individual has a significant risk of personal harmbased upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety.
Guardianship Proceedings Incapacity as to Estate RCW 11.88.010 (1)(b) A person may be deemed incapacitated as to the person's estate when the individual is at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs.
Guardianship Proceeding Participants Petitioner Alleged Incapacitated Person (AIP) Guardian ad Litem (GAL) Attorney for AIP Guardian Judge/Commissioner or Jury
Types of Guardianships and Guardians Guardianship of Person Guardianship of Estate Guardianship of Person and Estate Full or Limited Guardianship of Person and/or Estate Lay Guardians Professional Guardians Co-Guardians
Alternatives to Guardianship (Tools) Health Care and Personal Needs Financial Needs Protection Orders
Health Care and Personal Needs Alternatives
Informed Consent - Health Care A person must understand the following to give informed consent. His/her health condition The proposed treatment The hoped-for results Possible alternative treatment Possible risks and benefits from treatment Consequences if not treated 18 9/11/2024
Who Can Give Informed Consent? If an adult cannot give informed consent for medical, the law (RCW 7.70.065) sets out a hierarchy for consent: Health care guardian Agent with health care durable power of attorney (AIF) Spouse or Registered Domestic Partner Son or daughter (over age 18 - all must agree) Mother or father (both must agree) Brother or sister (over age 18 - all must agree) 19 9/11/2024
POLST Physician s Order on Life Sustaining Treatment Doctor s Order Patient (or representative) and provider discuss and sign.
Health Care Directive A document, signed by an individual, directing care to be given or withheld at end of life Permanent vegetative state or terminal condition NOT a Doctor s order
Personal Assistance Devices and Personal Assistants Assistance with medication management, errands, transportation, meals and other needs. Think outside the box be creative. Consider the community of people and services that might provide assistance.
Power of Attorney RCW 11.94 authorizes an individual to designate others to advocate on his/her behalf, including making medical decisions, through a power of attorney. 23 9/11/2024
Different Kinds of Power of Attorneys Financial Medical Power of Attorney Durable Power of Attorney 24 9/11/2024
Durable Power of Attorney Effective even when the person who signed the durable power of attorney later becomes incapacitated. DPOA Form: Washington Law Help http://www.washingtonlawhelp.org/files/C9D2EA3F-0350-D9AF-ACAE- BF37E9BC9FFA/attachments/392A5117-D581-FCE9-5EF2-E382E46B92AC/9900en.pdf 25 9/11/2024
Power of Attorney Vocabulary Principal Agent, proxy, attorney in fact Fiduciary - Trust, Accountability Health care, Financial 26 9/11/2024
Advantages of Power of Attorney Easy to create/little or no cost Provides an advocate with authority Can nominate guardian Principal controls choices Revocable The agent is a fiduciary 27 9/11/2024
Disadvantages of Power of Attorney No court oversight/possible abuse Authority may be challenged Must meet capacity requirement to sign 28 9/11/2024
Special Education student, age 18: Guardianship needed? At 18, a student s educational rights are transferred from the parents to the student. WAC 392-172A- 05135(1)(b); 34 C.F .R. 300.520(a). Students who hold their own education rights can authorize any adult to make educational decisions for the student by using a power of attorney. WAC 392-172A-05135(6). 29 9/11/2024
Special Education student, age 18: Guardianship needed? Where there s a guardian, the guardian will represent the student s educational rights. WAC 392-172A-05135(4). Students without guardians can be certified as unable to make educational decisions WAC 392-172A- 05135(5)(a). If this happens, the school district assigns an educational rep. WAC 392-172A-05135(5)(b). Certification of a student s inability to make educational decisions can be challenged at any time. WAC 392- 172A-05135(5)(c). 30 9/11/2024
Health Care and Personal Needs Alternatives (cont d.) Specialized Directives (planning tool) Mental Health Directive Alzheimer s Disease and Dementia Mental Health Directive Supported Living Environments Case Management
Financial Needs Alternatives
Financial Needs Alternatives Financial Durable Power Of Attorney (planning tool) Representative (SSA) Protective Payee (VA)
Representative Payee When an individual with disabilities receives money or benefits from an agency and is not able to manage his or her own money, a representative payee may be appointed to be responsible for the benefits, and to ensure they are used only for the benefit of the person with a disability. The payee is a fiduciary. 34 9/11/2024
Financial Needs Alternatives (cont d.) Trusts (planning tools) Living Trusts Testamentary Trusts Special Needs Trusts (SNT) (Think outside the box other appropriate alternatives may be available to address financial needs)
Protection Order Alternatives
Protection Order Alternatives Domestic and Criminal Protection Orders Vulnerable Protection Orders (VAPO) RCW 74.34 Who can file for a VAPO Who can be protected by a VAPO Vulnerable adult Two court hearings required Protections available under a VAPO Personal and Financial Length of VAPO Non VAPO Protection Orders
Group Discussion Group Task: Analyze two separate factual scenarios and, as a group, suggest alternatives for addressing personal, financial, and safety needs Review Fact Patterns: Fact Pattern #1 - Younger Disabled Fact Pattern #2 - Elder Break into groups Discussion Group reporting of Alternatives
Resources RCW 7.70.065 Informed Consent Statute http://app.leg.wa.gov/rcw/default.aspx?cite=7.70.065 Alternatives to Guardianship for Adults (Washington Law Help Northwest Justice Project)http://www.washingtonlawhelp.org/resource/alternati ves-to-guardianships-for-adults?ref=xsqY4 Powers of Attorney and Health Care Directives (Washington Law Help Seattle University School of Law & Northwest Justice Project) http://www.washingtonlawhelp.org/resource/questions-and- answers-on-powers-of-attorney?ref=QsXy3 Representative Payee (Social Security) https://www.ssa.gov/payee/
Resources (contd.) VAPO RCW 74.34 (VAPO) Vulnerable Adult Protection Order http://apps.leg.wa.gov/rcw/default.aspx?cite=74.34. 110 VAPO Forms (Washington Courts)https://www.courts.wa.gov/forms/?fa=forms. contribute&formID=70 Alzheimer s Disease and Dementia Mental Health Directive (End of Life Washington) http://endoflifewa.org/alzheimers- diseasedementia-advance-directive/
Resources (contd.) Mental Health Advance Directives Chapter 71.32 RCW http://apps.leg.wa.gov/rcw/default.aspx?cite=71.32) Mental Health Directive Form http://app.leg.wa.gov/RCW/default.aspx?cite=71.32.26 0
Resources (contd) Disability Rights Washington DRW Information Sheets http://www.disabilityrightswa.org/tools-help-you/guardianship-0
