Guardianship
- Introduction
- Establishing a Guardianship
- Guardianship for Minors
- Fees in Guardianship Proceedings
- Lay vs. Professional Guardians
- Court Oversight of an Established Guardianship
Introduction
A Guardianship is a court proceeding whereby one can obtain the legal right to make decisions regarding the property and/or personal affairs of another. A Guardianship is similar to a Power of Attorney in that they both deal with substitute decision making.
A Power of Attorney is generally preferable to a Guardianship because it is less expensive and affords more privacy. In fact, a Guardianship will not be imposed on someone if the court finds that a less restrictive alternative, such as a Power of Attorney, is available. However, the court does have the power to revoke a Power of Attorney if it finds good cause to do so, such as if the Power of Attorney was obtained by fraud or duress. A Guardianship may also be necessary if an incapacitated person has no Durable Power of Attorney.
A Guardianship can deal with personal and medical decision making, referred to as a Guardianship “of the Person”; it can deal with property and financial matters, referred to as a Guardianship “of the Estate”; often an incapacitated person will need a Guardian of both the Person and Estate. If the incapacitated person, or Ward, retains the ability to handle some of his or her own affairs, a “Limited” Guardianship of the Person and/or Estate may be established.
Establishing a Guardianship
A Guardianship cannot be created overnight; the law presumes an individual is competent until a finding of incapacity is made, with due consideration for the legal rights of the alleged incapacitated person. That means the incapacitated person is entitled to notice of the Guardianship proceeding; the right to an attorney to represent him or her, even if he or she cannot afford one; and the right to a jury trial on the issue of their capacity.
Mere eccentricity or poor decision making skills alone do not justify imposing a Guardianship on someone; rather, a court must find a person is legally “incapacitated” under the Guardianship statutes before a Guardian can be appointed. A person may be deemed incapacitated as to his or her Person if the court determines the individual has a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety. A person may be deemed incapacitated as to his or her Estate if the court determines the individual is at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs.
Upon the filing of a Guardianship petition, the court will automatically appoint a “Guardian ad Litem”, or “GAL”; the appointment is required by the Guardianship statutes. The GAL is not a temporary Guardian, though the GAL does have limited authority to consent to emergency life-saving medical treatment, as well as the authority to seek restraining orders to protect the alleged incapacitated person from abuse, neglect, or exploitation until a hearing can be held on the merits of the Guardianship petition. The primary role of the GAL is to conduct an investigation and file a report with the court addressing whether or not a Guardian or Limited Guardian should be appointed, and, if so, whether the person seeking to be Guardian is an appropriate choice.
Because the GAL needs time to conduct his or her investigation and complete the report, the hearing on the Guardianship petition is frequently scheduled 50 to 60 days from the date the petition is filed; a hearing can generally be heard sooner, if circumstances warrant; or, in complicated cases, the hearing can be delayed to give the GAL and other parties time to prepare. (By law, the hearing must be held within 60 days of filing the petition, but the court can waive that deadline for good cause, particularly when the alleged incapacitated person is not in any danger).
If the alleged incapacitated person has a Power of Attorney in place, the GAL report must specifically address whether or not it constitutes a valid alternative to Guardianship. Also, Washington law permits a person to include a nomination of Guardian within a Power of Attorney, and if a court subsequently determines that a Guardianship is necessary, the person nominated in the Power of Attorney must be appointed unless the court finds good cause not to do so, or the person nominated is disqualified from serving. Similarly, a parent may nominate a Guardian for minor children in both a Power of Attorney and Will, and in any subsequent Guardianship proceeding, the court is obligated to appoint the person(s) nominated by the parent unless the nominee is not qualified to serve.
There are few formal qualifications necessary to serve as a Guardian; generally, a Guardian must be over 18, of sound mind, and have never been convicted of a felony or misdemeanor involving moral turpitude. However, the court can decline to appoint a person found to be unsuitable; generally, the court will not appoint a person as Guardian of an incapacitated person’s estate if that person has a history of personal financial problems (such as excessive debt or bankruptcy).
The GAL’s duties also include obtaining a medical report from a licensed physician, psychologist, or advanced registered nurse practitioner. The medical report must be prepared by a healthcare professional who has examined the alleged incapacitated person within 30 days of preparing the report, so arrangements may need to be made for an examination. Occasionally, the alleged incapacitated person will refuse to see a doctor; in that case, it may be necessary to arrange for a home visit.
Family members and friends of the alleged incapacitated person generally have the right to appear in the proceeding, such as filing a written response to the Guardianship petition and/or the GAL report, and attending the court hearing on the petition. This often occurs when there is disagreement over whether a Guardianship is needed, or who should be appointed Guardian.
If the alleged incapacitated person is a veteran and is eligible to receive veteran’s benefits, the Veteran’s Administration is automatically entitled to advance notice of any proceeding to appoint or remove a Guardian, terminate a Guardianship, or any other legal action affecting the Ward’s estate, and procedural requirements of the Uniform Veterans Guardianship Act must be followed.
Guardianship for Minors
Persons under the age of 18 may be found to be incapacitated, and in need of a legal Guardian due to their age. As noted above, a parent may nominate a Guardian for minor children in the parent’s Durable Power of Attorney or Will. The procedures for appointing a Guardian for a minor is generally as outlined above, except that no medical report is necessary if the sole basis for the Guardianship is the minor’s age.
A Guardianship based solely on minority will generally terminate automatically when the minor becomes an adult; therefore, when seeking a Guardianship for a minor who is incapacitated due to a mental illness or physical disabilities, it is better to seek a permanent Guardianship on that basis rather than one based on minority alone.
Fees in Guardianship Proceedings
If the court finds that the Guardianship petition was brought in good faith, all the fees incurred by the GAL and any attorney appointed for the alleged incapacitated person will be paid from the assets of the alleged incapacitated person (unless he or she is indigent, in which case these fees are paid by the county). The court has the authority to order the alleged incapacitated person to pay legal fees incurred by other parties as well. In fact, the court has the authority to order any party to pay the fees of any other party to the proceeding. So long as the petition was brought in good faith and the relief sought was appropriate, the court is likely to permit the petitioner’s attorney fees to be paid from the assets of the incapacitated person; conversely, if the court finds that the petition was frivolous or the petitioner was unnecessarily litigious, the court may order the petitioner to bear his or her own attorney fees, and to pay some or all of the fees incurred by any other party, including the GAL.
Lay vs. Professional Guardians
If a Guardianship is necessary, the court will often appoint a qualified family member, such as a spouse or adult child, or even a friend. A resident of another state may serve as Guardian for a Washington resident, provided they appoint a Resident Agent.
In some cases, a Professional Guardian may be appropriate. Although they charge a fee for their services, they are experienced in handling other people’s affairs, knowledgeable about the law as it applies to Guardians, and frequently have a staff member on call 24/7 to handle emergencies.
Even if a family member is qualified to serve, difficult issues may arise (for example, the incapacitated person may be combative, uncooperative, or difficult to deal with). In such cases, a Professional Guardian can help by grappling with difficult decisions, thereby letting the family member spend time with a loved one without being a target of the Ward’s anger or frustration over Guardianship matters.
Court Oversight of an Established Guardianship
After an Order Appointing Guardian is entered, the court retains jurisdiction over the Ward’s affairs; Our article, Managing Someone’s Affairs under a Guardianship, addresses ongoing court oversight of an existing guardianship.
The attorneys and staff at the Law Office of John S. Palmer have experience handling both contested and uncontested guardianship matters in King, Pierce and Snohomish Counties.
If you have any questions or would like to schedule a free initial consultation, please call us
at (425) 455-5513, toll free at 1 (877) 455-5513, or send us an email.