Frequently asked questions about guardianship, designed to protect of those whose functional limitations prevent them from making their own decisions.
Guardianship is designed to protect and promote the well being of those whose functional limitations prevent them from making their own decisions.
Table of Contents
- What is a guardian?
- What is guardianship?
- How does it work?
- Are there limits?
- Some areas that a court may grant guardianship
- How does one know if a person may be in need of guardianship?
- How to choose a guardian?
- Who may act as a guardian?
- Where to begin
- Less Restrictive Alternatives
- How long does the guardianship process take?
- For more information
What is a guardian?
A guardian is a person or agency appointed by a court to manage the affairs of another, called the ward or incapacitated person.
What is guardianship?
Guardianship is the management of the affairs of a person who has been judged unable to manage his or her own affairs. It is a legal relationship between a competent adult and a person who is 18 or older, and who has a disability which causes incapacity. The disability may be caused by:
- mental deterioration,
- physical incapacity,
- mental illness, or
- developmental disability.
A guardian assumes the rights of the incapacitated person to make decisions about many aspects of daily life making decisions in his or her best interest. The guardian’s actions are reviewable by the court.
A developmental disability or mental illness is not, by itself sufficient reason to declare someone incapacitated. Incapacitation has to do with a person’s inability to make a decision or, with the risk of harm that they may experience due to their inability to provide for themselves or manage their affairs.
How does it work?
Guardians are appointed by Superior Court judges or court commissioners. Appointments are made in response to petitions filed in the Superior Court. Any interested person may file a petition. This does not mean they want to be the appointed guardian.
The petition asks the court:
- to determine that the person identified in the petition is incapacitated, and
- to appoint a guardian.
Before Guardianship is granted, four steps must be taken:
- Notice of the guardianship petition must be given to the person identified in the petition;
- The court must appoint a person (called a “guardian ad litem”) to conduct an investigation and report to the court;
- The guardian ad litem must obtain a statement from a physician or psychologist; and
- A hearing must be held.
Are there limits?
Courts can appoint limited guardians for people who are capable of caring for themselves, or arranging for their care, in some ways but not in others. Guardianships are not supposed to be broader than necessary to meet the needs resulting from a person’s Incapacity nor are they financially responsible for their prior debts..
Some individuals require a guardian who has responsibility for both the person and the estate.
The Guardian of the Person handles:
- Medical Treatment
- Living Situation
- Personal Decisions
The Guardian of the Estate handles:
- Financial Decisions
The court can appoint a temporary guardian with very specific powers and duties written into the order in the case of an emergency. In determining the necessity for temporary guardianship, the immediate welfare and protection of the alleged person with a disability and his or her estate should be of paramount concern.
The right to privacy and independence in determining how to manage one’s own affairs is paramount and should be protected.
Some areas that a court may grant guardianship in are:
- Access to and release of confidential records and papers
- Decisions concerning education or counseling
- Determining and monitoring place of the individual’s residence
- Giving gifts
- Initiating, defending or settling lawsuits
- Lending or borrowing money
- Making a will
- Paying or collecting debts
- Possessing or managing real or personal property or income
Liberty and autonomy should be restricted through the guardianship process 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 Legislative intent.)
How does one know if a person may be in need of guardianship?
RCW 11.88.010(1) defines when a person may qualify for a guardianship.
Guardianship of the Person:
The individual has a significant risk of personal harm based upon a demonstrated inability to adequately provide for
- housing or
- physical safety.
Guardianship of the Estate:
The individual has a significant risk of personal harm based upon a demonstrated inability to adequately manage
- property or
- financial affairs.
Practical questions determining need for guardianship:
- Does the person understand that a particular decision needs to be made?
- Does the person understand the options available in any decision?
- Does the person understand the consequences of each option?
- Is the person able to properly inform appropriate parties once the decision has been made?
How to choose a guardian.
In making the selection of an individual to serve as guardian, first consideration is usually given to those who play a significant role in the person’s life. The guardian should be someone who is both aware of and sensitive to the needs and preferences of the person with a disability. It is important to remember that guardianship is a relationship in which the court places trust and confidence in the capability and integrity of another. It is within the power of the Court to name co-guardians.
Who may act as a guardian?
Any suitable person at least 18 years of age who is not of unsound mind, has not been convicted of a serious crime and meets any certification requirements and is acceptable to the court, may be named guardian of an adult with disabilities.
Any agency, public or private, may serve as guardian of the person or estate, if the court finds that it is capable of providing an active guardianship program.
A bank may be appointed guardian of the estate but not guardian of the person.
Where to begin?
Guardianship can be requested by anyone who is interested in the incapacitated person’s well being. In most instances an attorney is retained to file a petition at the court in the county of residence of the incapacitated person.
Although an individual seeking guardianship for another may do so without the use of an attorney, the advice of legal counsel may be beneficial and helpful and especially where the alleged person with disabilities objects to guardianship or where complicated personal or financial issues are presented to the court. If proceeding without an attorney, the clerk of the court should be consulted to obtain copies of local court forms, and to learn about the scheduling of guardianship cases.
Determine if the individual with disabilities wishes to be able to vote and address it at the beginning of the Guardianship process.
The proposed incapacitated person is entitled to legal representation at the hearing. If needed, the court will appoint an attorney.
An individual facing a guardianship adjudication also has the right to request an independent medical evaluation, which must be paid from the funds of the alleged person with disabilities, if any.
Less Restrictive Alternatives
Sometimes guardianships are pursued unnecessarily when a person needs help managing finances or personal care, and friends or family are unsure what to do. One or more alternatives may address the problem.
A representative payee is a person who is appointed to manage Social Security benefits on behalf of an individual. Requests for a representative payee should be directed to Social Security.
Social and health services that may be arranged directly from providers or through case managers include: respite care, information and referral, adult day care, home health care, homemaker and personal care, home delivered meals, mental health services, day program and vocational services, tenant support and transportation. Eligibility for publicly funded services may depend on income, age and type of disability.
Alternatives to Guardianship:
- Case/care Management
- Community Services
- Durable Power of Attorney
- Healthcare Power of Attorney
- Joint Tenancy
- Living Trusts
- Living Wills
- Money Management Services
- Representative Payeeships
- Respite Care & Other Services
How long does the guardianship process take?
Temporary guardianship can be obtained quickly. The length of time required for the guardianship process when an emergency does not exist is about 60 days.
It is important to thoroughly investigate the case before filing it, because it cannot be withdrawn later without the court’s permission. There can be serious consequences for the petitioner and also for the petitioning attorney if the case is found to be frivolous.
After a Petition for Guardianship is filed and presented to the court, the court must appoint a guardian ad litem to temporarily represent the best interests of the alleged incapacitated individual.
The guardian ad litem has the duty of investigating both:
- the need for a guardian and
- whether the proposed guardian is appropriate.
After their visit with the alleged incapacitated individual, the guardian ad litem will then determine whether they believe that it is in their best interest that an attorney represent them.
The court must then be so advised within five days of this visit. The court will then appoint an attorney to represent the alleged incapacitated individual.
A written report will be presented to the court by the guardian ad litem regarding the investigation.
At the Hearing
The alleged incapacitated individual must be present, unless good cause for his or her absence is shown, at the hearing on the Petition for Guardianship. Usually the proposed Guardian is also present. The court will review the written report of the guardian ad litem as well as the medical report obtained by the guardian ad litem. Both of these reports are strongly relied upon by the court in their decision making process to determine if there is evidence of the incapacity.
The court will listen to the testimony of any witnesses as well as to the individual who has been alleged to be incapacitated. If the court comes to the decision that the guardianship is warranted, an order will be so entered. The court may also determine that a full guardianship is not warranted and rule for a limited guardianship.
Upon appointment, the guardian is required to file an oath. At this time a bond may be required of the guardian if the amount of the incapacitated person’s assets or estate exceeds $3,000. Within three months of their appointment, the guardian must also file a listing of the incapacitated person’s assets on an inventory of assets. The guardian is not financially responsible for the incapacitated person’s prior debts.
Depending on the size of the estate, the guardian is expected to report to the court on an annual or tri-annual basis once they are appointed. This report to the court details, the income received and expenditures made during the reporting period, the incapacitated person’s mental and medical status, any changes in functional ability, residential changes and activities of the guardian as well as other things.
For more information
- Alternatives to Guardianship for Adults Columbia Legal Services (Revised 11/07)
- Questions and Answers on Guardianship: Columbia Legal Services (Revised 6/05) (NOTE: You will need to type in the word “guardianship” in the search box in the right-hand column to access this information.)
- WA Professional Guardian Certification Program
Disclaimer: This publication is designed to provide general information and should not be utilized as a substitute for professional service, legal advice or other expert assistance.