Guardianship is a big topic for many families and we thought it might help to clarify some of the questions that you might have.
This will be a 3 part series and we will discuss many topics including; age of majority, basic guardianship information, provide some alternatives to guardianship and share information about a concept called supported decision making. Additional family resources and family stories will also be included.
Part 1, will focus on:
- Age of majority and why it’s important,
- Basic definitions of guardianship,
- Some reasons families choose guardianship and guardianship misunderstandings
These articles will be written from a parent’s perspective and are not meant to provide legal advice. Legal matters are best served by consulting with an attorney. That said, here we go…
So what is Age of Majority and why should I be concerned? RCW (Revised Code of Washington) 26.28.010 says, “Except as otherwise specifically provided by law, all persons shall be deemed and taken to be of full age for all purposes at the age of eighteen years.” That means your student can make any and all decisions that affect their life like; attending/leaving school, getting married, moving out or buying that new apple phone.
When students are getting close to the age of 18, schools will often bring up the “Guardianship” conversation. Schools are not required to invite parent or relative to IEP meetings after the student reaches the age of majority. WAC (Washington Administrative Code) 392-172A-05131(1)(b); “At 18, a student’s educational rights are transferred from the parents to the student.” WAC 392-172A-05135(6) states “Students who hold their own education rights can authorize any adult to make educational decisions for the student by using a power of attorney”, what if your daughter choses her 35 year old boyfriend? Just sayin’!
I don’t know about you, but I wasn’t ready to make many decisions myself at 18 and my parents provided much needed guidance well into my young adult life. If your son or daughter is living with a disability that might impact safe decision making, sometimes referred to as “executive functioning”, then you may want to continue to assist with major life decisions. Guardianship may be your solution.
Basic Guardianship Definitions
Guardian – Webster defines a guardian as a person who guards, protects, or preserves; Law, a person who is entrusted by law with the care of the person or property, or both, of another, as a minor or someone legally incapable of managing his or her own affairs. “A person legally responsible for the care of another”. Spokane Guardianship Monitoring Program
Incapacitated Person – “A person who is determined by the court to be unable to provide their own needs to the point where they need someone appointed to manage their personal and/or financial affairs”. SGMP
Letters of Guardianship – “A document issued by the court clerk which evidences the guardian’s power to act for the incapacitated person”. SGMP
Fiduciary Duty – “The highest legal duty one owes to another when entrusted with the management of another’s property and/or personal affairs”. SGMP
Types of Guardianships – Limited or Full, of the Person or Estate or both Person and Estate.
Some reasons a family or friend might chose to become an individual’s legal guardian
My daughters is a junior in high school and her teacher said I need to become my daughter’s legal guardians to continue participating in her IEP development. Your daughter can write a letter to school letting them know that she would like you to continue to participate in her IEP meetings. Remember, the student can invite advocates to attend their IEP meeting whether it be their parent or others who have knowledge to contribute. If the school asks for a more legal document you can have your student sign a power of attorney giving you the right to participate.
My son won’t be able to handle the social security benefit he will be receiving from Social Security. You can become the Representative Payee – for more details please refer to Social Security Administration @ ssa.gov There are professional organizations that can also provide the service of Representative Payee, you might start with your local Arc for your county providers.
My son has intense medical issues that require my input. RCW 7.70.065 – “When an adult cannot give informed consent a hierarchy of persons who may make medical decision for and individual where a health care provider questions a person’s ability to make an informed decision”. In many cases, this authority is sufficient, and no guardianship is needed. You can refer to the RCW listed above to see the entire list of alternative decision makers.
My loved one will lose all of their rights. Not so. On the order appointing guardian, there is a section referred to as “Limitations and Restrictions Placed on the Incapacitated Person”. There are 9 specific rights that can be limited or restricted and they are; the right to vote, marry or divorce, make or revoke a will, enter into a contract, buy, sell, own, mortgage or lease property, possess a license to drive, consent to or refuse medical treatment, decide who shall provide care and assistance, decisions regarding social aspects of your life. There is also an “other” box if there is another concern not listed above.
Now that I’m the guardian, I can force my daughter to live at home …forever. Not so quick, part of the definition of guardian duties is to make decisions that support the wants and desires of the person you are guardian of. Decisions a substitute decision maker can’t make are; sterilization, anti-psychotic, restraint, placement against will, psychosurgery, and shock treatment.
I won’t be able to afford an attorney. In the state of Washington, if the individual you are proposing have a guardian has less than $2,500 (check with your county) in assets and is over the age of 18, the state pays for this process. In some counties, parents are responsible for the In Person training manual that cost about $20. Filing fees are waived and a Guardian Ad Litem processes most of the paperwork. That doesn’t mean you don’t have a lot of paperwork ahead of you, it just means that cost is no longer the barrier.
In the state of Washington there are 5 Guardianship Monitoring Programs. These programs can provide you with information packets, guidance (not legal advice) and additional information.
Our next article will discuss Alternatives to Guardianship and Supported Decision Making. Stay tuned!!