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Frequently
Asked Questions About Alternatives to a Guardianship
Options Available After a Person Becomes
Incapacitated or if Incapacitated from Birth
Adapted with permission from Washington Guardianship
http://www.wa-guardianship.com
a
service of the Law Office of
Richard Wills
What options are available after a person becomes incapacitated?
What is the Consent to Health Care Statute?
What is a Representative Payeeship?
What is a Supervised Individual Indian Money Account?
What is a Money Management Service?
What are Respite Care and Other Services?
What options are available after a person becomes incapacitated? Back to Top
When a person has difficulty managing finances or personal care and lacks advance planning directives (such as a Durable Power of Attorney), the following options and services should be considered before a guardianship is pursued:
What is the Consent to Health Care Statute? Back to Top
Washington law provides a method for someone else to make health care decisions when a person is not capable of making health care decisions because of mental incapacity. Merely having a physical ailment, however, does not necessarily mean that the person is incapable of consenting to health care.
In general, an adult has the right to make decisions about what care or treatment is to be done to his or her body. "Informed Consent" means a person has made a decision about medical care (including the refusal of care) after being informed about the possible risks and benefits of the proposed care and of other options. To give "informed consent," a person must have a mental capacity to basically understand the choice and make such decisions.
Sometimes disputes arise about whether a person still has the mental capacity to make his/her own health care decisions. If the person believes he/she is able to make such decisions and the medical provider disagrees, a court decision in a guardianship proceeding may be needed to resolve this conflict.
When a person does not have capacity to consent to health care, the Consent to Health Care Statute provides for a substitute decision-maker. The order of priority for substitute decision makers is as follows:
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Any appointed guardian of the patient;
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A person to whom the patient has given a Durable Power of Attorney that specifically grants authority to make health care decisions;
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The patient's spouse;
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The patient's adult (at least age 18) children;
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The patient's parents;
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The patient's adult brothers and sisters.
Before any of these substitutes may make a health care decision for the patient, the substitute must first determine in good faith whether the patient, if competent, would consent to the proposed health care. If such a determination cannot be made, the health care decision may be made only after determining what is in the patient's best interest.
A physician seeking informed consent for proposed health care of such an incapacitated person must make reasonable efforts to locate and get authorization from a person in the first or succeeding priority class listed above. For example, if the patient has a guardian, the physician must first attempt to reach the guardian for consent. If no person is available in that class, authorization may be given by a person(s) in the next class listed. No consent can be given if a person in a higher priority class has refused to give authorization, or if the decision is not unanimous among all available members within the priority class making the decision.
For certain procedures, a court order, rather than consent, is required. For example, no person, not even a Guardian or an Agent under a Durable Power of Attorney, may consent to therapy or other procedure that induces convulsion (such as electro-shock therapy), psychosurgery, or other types of intensive psychiatric/mental health procedures. A person also cannot be placed in a residential treatment facility, such as nursing home, against the person's will without a court order issued in accordance with involuntary treatment procedures.
What is a Representative Payeeship? Back to Top
A representative payee is someone appointed by a government agency, such as the Social Security Administration or the Veterans Administration, to act as a substitute to receive and handle the benefits owed to a recipient. The representative payee agrees to use the government benefits on behalf of the beneficiary for the beneficiary's personal care or well-being. A guardianship is not needed to manage these funds.
Requests for a representative payee should be directed to the government agency sending the benefits. Sometimes the person receiving benefits does not want a payee or wants a different person to serve as payee. The agency also can explain any rights the person may have to object and to appeal the payeeship decision.
What is a Supervised Individual Indian Money Account? Back to Top
Some Native Americans receive one-time or recurring income from Indian trust land managed for them by the federal government or as compensation for the loss of Indian lands. If an individual needs help to manage this income, the Bureau of Indian Affairs of the U.S. Department of Interior (the "BIA") can restrict the account into which these funds are paid and can manage the funds for the benefit of the individual. The BIA prefers, but it is not always necessary, that a tribal court make an initial determination of incapacity. The BIA also can act as protective payee for federal pension or benefit checks if the federal agency determines a payee is needed.
Requests to have an Individual Indian Money Account or other funds of an incapacitated Native American managed by the BIA should be made to the BIA Superintendent at the particular BIA agency that manages the Indian trust land for that individual and tribe.
What is a Money Management Service?
Back to Top
Money management alternatives include automatic
banking, direct deposit, and personal money management services. Automatic
banking allows the bank to pay regular bills. Direct deposit allows electronic
deposit of regular sources of income into the recipient's bank account.
Personal money management or bill paying services can be helpful but may be
expensive. Choosing such a service requires careful consideration of the staff
qualifications, management practices, and protections such as bonding and
insurance to minimize the chance of financial loss, from negligence or theft.
What is Case Management?
Back to Top
Case management helps functionally disabled adults
obtain necessary support services. It includes an assessment of a person's
ability and needs, development of a detailed plan of care, and follow-up to
ensure services are provided and changed as needed. Free case management may be
available under state programs administered by the Division of Developmental
Disabilities, Division of Mental Health, Division of Vocational Rehabilitation,
or Aging and Disability Services. The
Arc of King County can direct you to options.
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