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1 & Guardianship And Alternatives: Respecting Rights & Supporting Choices.

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1 1 & Guardianship And Alternatives: Respecting Rights & Supporting Choices

2 2 DRW Disability Rights Washington (DRW) Independent, non-profit Priorities identified by Board Advocacy – all types All disabilities Free! 1-800-562-2702

3 3 FORMAT Legal information, not advice Questions welcome

4 4 Questions? What questions would you like answered during this presentation?

5 5 What is a Guardian? Statute: RCW 11.88 RCW 11.92 Appointed by the court Protects, advocates for person who has limited “capacity” Responsible for decision-making It is the guardian’s duty to uphold rights.

6 6 Guardianship process : What happens when a guardianship is set up? Petition – incapacity, nominate guardian Attorney may be appointed for “alleged incapacitated person” (“AIP”/”IP”) Guardian ad litem investigates – must look at “alternatives to guardianship” Medical/psychological reports Hearing before judge or jury – can be held at person’s residence

7 7 “It shall be the duty of the guardian or limited guardian of the person... To care for and maintain the incapacitated person in the setting least restrictive to the incapacitated person’s freedom and appropriate to the incapacitated person’s personal care needs, assert the incapacitated person’s rights and best interests, and … where … appropriate, to see that the incapacitated person receives appropriate training and education and that the incapacitated person has the opportunity to learn a trade, occupation or profession.” (emphasis added)RCW 11.92.043(4)

8 8 Guardian Rights? Guardians have duties and responsibilities, not rights. A guardian has the duty to assert the rights of the protected person.

9 9 Types of Guardianship Full guardianship Limited guardianship Estate Person Minor Testamentary Co-guardian Stand-by guardian Professional

10 10 Professional Guardianship Certified Professional Guardianship Board –Standards of Practice –Discipline –Complaints Standardized Training

11 11 Office of Public Guardianship Created in statute Mission includes support for decision-making options – not just guardians Limit: 20 individuals per guardian Advisory board Recruits, contracts with professional guardians Supervises and monitors guardians Cannot petition for guardianships

12 12 What does the guardian do to protect rights? What is their job? Personal Care Plan Annual Report Substantial Change Report Attend meetings (IEP, ISP, etc.) Pay attention to medical, financial, social services – visit, ask questions Watch for abuse and neglect Promote independence Show respect, listen Be assertive!

13 13 Why would a person have a guardian? doesn’t have the capacity to make decisions for oneself puts self at risk puts others at risk takes on responsibility he/she cannot handle is exploited or otherwise put at risk disagrees with a person in authority about “best interest”

14 14 Incapacity (Estate) Significant risk of financial harm based upon demonstrated inability to adequately manage property or financial affairs Incapacity (Person) A significant risk of personal harm based upon a demonstrated inability to adequately provide or arrange for nutrition, health, housing or physical safety

15 15 What is Informed Consent? The 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

16 16 Who makes health care decisions when an adult cannot give informed consent? RCW 7.70.065 Health care guardian Agent with health care durable power of attorney Husband or wife Son or daughter (over age 18 - all must agree) Mother or father (both must agree) Brother or sister (over age 18 - all must agree)

17 17 What are the alternatives to Guardianship? Powers of Attorney Protective Payee Case Managers Providers Family Members Friends Advance Directives

18 18 Power of Attorney RCW 11.94

19 19 Power of Attorney Principal Agent, proxy, attorney in fact Fiduciary - Trust, Accountability Health care, Financial

20 20 Durable Power of attorney Effective even when incapacitated

21 21 Advantages of power of attorney Easy to create/little or no cost Provides an advocate with authority Can nominate guardian Principal controls choices Revocable

22 22 Disadvantages of Power of Attorney No court oversight/possible abuse Authority may be challenged Must meet capacity requirement

23 23 What are your Rights? You have a right to: Due Process To be in the least restrictive & most integrated setting Choose where to live To associate freely Freedom of expression Vote To make contracts To counsel Make own decisions Be sexually active To marry To have & raise children Not to be discriminated against

24 24 What Rights may be lost in guardianship? To marry or divorce To vote or hold an elected office To enter into a contract or revoke a will To appoint someone on your behalf To sue or be sued To be a licensed driver To buy, sell, own, mortgage, or lease property To consent to or refuse medical treatment To decide who will provide care To make decisions about social matters

25 25 What decisions can’t be made by a guardian? Sterilization Anti-psychotic, restraint Placement against will Psychosurgery “Shock treatment” (e.g. ECT)

26 26 In what circumstances can substitute decision making occur? Danger to self Danger to others Grave disability Financial incapacity Health care incapacity Situations where one lacks the capacity to give informed consent

27 27 Is it better for my family member to serve as a guardian? What are the advantages of family members serving as guardians? Disadvantages? What are the pros and cons of professional guardianships?

28 28 Where do surrogate decision- makers get their authority? Power of attorney – from the person Payee – from the source of funds Guardian – from the court The primary source of authority is personal credibility of the surrogate decision-maker with the individual.

29 29 What if there is more than one decision-maker? clarification of roles identification of responsibilities and interests of parties identification of the individual’s choice mediation and problem-solving reconcile choices, interests & responsibilities

30 30 What can go wrong with a guardianship? Make decisions based on the convenience of the guardian not the individual. Make decisions on the financial interest of the guardian not the individual Disrespect of person’s ability to make own choices

31 31 How Do I Remove a Guardian? Under Washington law, anyone can request the court in which the guardianship was established to terminate the guardianship, modify the guardian’s duties, or have the guardian remove and replaced with another guardian. See RCW 11.88.120.

32 32 What are Some Common Issues? Authority of guardian in end-of-life decisions? Shortage of guardians Lawyer for set-up, challenge, modifying g’ship Guardians not kept informed/involved Transition to adulthood Loss of right to vote Guardians micro- manages Guardian exceeds authority Guardian not available when needed No one to give informed consent Professional g’ship complaints G’ship not up-to-date

33 33 Remember: Guardianship is sometimes needed – but it should be the last choice! Serious loss of individual rights Can be used to control or exploit Due process protections Before guardianship, look at alternatives Guardianship should be as limited as possible

34 34 Reform Agendas WSBA Elder Law Guardianship Task Force Superior Court Judges Association (SCJA) Best Practices Informed Consent Roundtable Office of Public Guardianship (OPG) Alternatives to Guardianship Report Social Security Payee Survey (DRW) WSBA Uniform Power of Attorney Task Force

35 35 Legislative Initiatives? 1. Require guardian report on support for community option and employment 2. Reliable agents available through OPG 3. Support informed consent without appointing guardianship – “informed consent panels” 4. Reverse guardian’s financial incentive toward facility placement

36 36 Legislative initiatives ? (2) 5. Protect against power of attorney abuse 6. Support WSBA bill – require hearings on reports, expiration date for guardianship 7. Training for lay guardians 8. Robust guardianship monitoring (Spokane model) 9. Improve complaint process

37 37 Honoring Choice Respecting Rights

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