Washington

What to Do When Your Child with Disabilities is Turning 18

Authored By: Northwest Justice Project LSC Funded
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Introduction

If you have a child who is unable to care for him- or herself because of a disability, you may be concerned about what to do when your child turns 18.  Parents do not automatically have the authority to make legal decisions for their children who turn 18, when the law considers the person an adult.

Many parents in this situation get advice to file for legal guardianship. [1] Filing for guardianship requires going to court and can be costly.  In some cases, you do not need a guardianship.  If you are considering filing for guardianship of your adult child, first consider whether the following legal options may be sufficient to meet his/her needs.

  • Youth up to the age of 21 who have an impairment that interferes with their ability to learn may be eligible for additional support and services to help them achieve a meaningful education.  If you feel your child was incorrectly denied these services, contact a legal services provider.

Is this publication for me?

This publication addresses laws in the State of Washington.  For updates to this publication, check the website www.washingtonlawhelp.org.  Our publication called Alternatives to Guardianship for Adults, also available at www.washingtonlawhelp.org, has more about alternatives to guardianships for adults, especially regarding situations other than a child with disabilities turning age 18.

What is the Consent to Health Care Statute?

Washington law has a method for someone else to make health care decisions for an adult who cannot make health care decisions for him- or herself because of mental incapacity. [2]   

  • Health care consent for minor children is different.[3]
  • Other states may have different laws.  

Having a physical ailment does not necessarily mean the adult is not capable of consenting to health care.

An adult generally has the right to make decisions about what care or treatment is to be done to his/her body.  Informed Consent means a person makes 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 the mental capacity to understand the choices and make the decision.

The consent to health care statute provides authority for a substitute decision-maker when an adult in Washington does not have capacity to consent to health care.[4]   The order of priority for the substitute decision maker for an adult is:

  • The appointed guardian, if any;

  • A person to whom the patient has given a durable power of attorney that specifically grants authority to make health care decisions;

  • The patient's spouse or state registered domestic partner;

  • Children of the patient who are at least age eighteen (as a group);

  • Parents of the patient (as a group);

  • Adult brothers and sisters of the patient (as a group).

The standard the substitute uses in making health care decisions is:

  • Choose what the person, with his or her values and preferences, would want if he or she were competent to decide. 

  • If, and only if, this determination cannot be made, decide based on what you believe is in the person's "best interests."

What is a representative payee?

A representative payee is someone a government agency appoints to receive and manage the benefits owed a recipient who cannot manage the benefits directly due to disability.   If your adult child gets SSI or other government benefits, you or another suitable adult can ask to be appointed to manage those benefits.  

Agencies using representative payeeships for benefits include:

  • Social Security Administration

  • Veterans Administration

  • Department of Defense

  • Railroad Retirement Board

  • Office of Personnel Management (federal employee retirement) 

The representative payee must use the government benefits on behalf of the beneficiary (the incapacitated person) for his/her personal care or well-being.  You do not need a guardianship to manage these funds.  Some Washington state programs have similar provisions for protective payees.[5]

You make your request for a representative payee to the government agency issuing the benefits.  Sometimes the person getting benefits does not want a payee, or wants someone else to serve as payee. The agency can explain any rights the person has to object and to appeal the decision.

What if I need legal help?

CLEAR is Washington's toll-free, centralized intake, advice and referral service for low-income people seeking free legal assistance with civil legal problems. 

  • Outside King County: Call 1-888-201-1014 weekdays from 9:10 a.m. until 12:25 p.m.  CLEAR works with a language line to provide free interpreters as needed to callers.  If you are deaf or hard of hearing, call 1-888-201-1014 using your preferred TTY or Video relay service.

  • King County: Call 211 for information and referral to an appropriate legal services provider Monday through Friday from 8:00 am – 6:00 pm. You may also call (206) 461-3200, or the toll-free number, 1-877-211-WASH (9274). 211 works with a language line to provide free interpreters as needed to callers. Deaf and hearing-impaired callers can call 1-800-833-6384 or 711 to get a relay operator at no cost, who will then connect you with 211. You can also get information on legal service providers in King County through 211's website at www.resourcehouse.com/win211/.

  • Persons 60 and Over: Persons 60 or over may call CLEAR*Sr at 1-888-387-7111, regardless of income.

This general information publication is produced by Northwest Justice Project, based in part on materials previously produced by Columbia Legal Services with funding from the Snohomish Co. Department of Human Services.  Right to reproduce in entirety granted for noncommercial purposes.         Revised 8-2013

 

Footnotes:


1. See Washington Administrative Code Chapter 388-79.