Managing Someone's Affairs under a Guardianship
Ongoing Court Oversight
Once a guardianship is established, the court has continuing oversight over the affairs of the Ward until the guardianship is terminated. The following is a general discussion of the duties and responsibilities of a legal guardian.
Initial Duties
Upon being appointed, a Guardian is required to file a notice with the court designating a standby Guardian. If a Guardian of the Person has the authority to make medical decisions, the standby Guardian may provide consent to necessary medical procedures if the Guardian cannot be located within 4 hours after the need for such consent arises. Upon the death or incapacity of the Guardian, the standby Guardian assumes the duties of the Guardian, but is required to petition the court for an appointment of a substitute Guardian within 30 days.
Within 90 days of being appointed, a Guardian of the Estate must prepare an Inventory of the Ward’s assets and file it with the court; that is followed by regular Accountings outlining income received and expenditures made during the reporting period. Accountings are generally done annually, but in low-asset cases it can be extended to every 3 years. Similarly, a Guardian of a Person must submit a Personal Care Plan within 90 days of being appointed, and update it regularly, explaining how the personal needs of the Ward are being met.
Legal fees for preparing care plans, accountings, and other court pleadings may be paid from the assets of the Ward, subject to court approval.
Protecting Assets
Certain procedures must be followed to protect a Ward’s bank accounts and other liquid assets. Generally, the Guardian must obtain a bond equal to the amount of liquid assets; the bond acts as a sort of insurance policy if a loss occurs due to the Guardian’s negligence or malfeasance. The amount of the bond can be reduced by placing some of the Ward’s assets in a “blocked” account, meaning an account from which withdrawals cannot be made without a court order. Not all financial institutions will agree to block an account, so funds may need to be moved to an institution willing to do so.
Most bond companies require that liquid assets not needed to cover expenses for the 12-month period between accountings be placed in blocked accounts; this limits the bond company’s exposure should a loss occur. An order permitting the Guardian to withdraw funds from a blocked account can often be obtained at the time the annual Accounting is presented to the court for approval. It is possible to obtain an order permitting withdrawals from a blocked account on a regular basis, such as monthly or quarterly, without the need to go to court each time a withdrawal is needed. This can give the Guardian a steady stream of funds to help pay the Ward’s expenses. Extraordinary financial transactions, such as selling the Ward’s house, initiating or participating in litigation on the Ward’s behalf, or making gifts of the Ward’s property, require special court permission.
Other Duties
A Guardian is required to report to the court, within 30 days, any substantial change in the incapacitated person’s condition or change of residence.
Family members, friends, and others with a legitimate interest in the Ward’s affairs have the right to request advance notice of the Guardian’s application for court approval of any action in the Guardianship, such as approval of any financial accounting, care plans, or extraordinary financial transactions. The order appointing Guardian will require the Guardian to notify certain interested parties of this right to request notice.
The Guardian submits income tax returns on behalf of the Ward, and therefore must notify the IRS of his or her appointment. Similarly, state law requires the Guardian to notify the Washington State Department of Revenue of the Guardian’s appointment; failure to do so could render the Guardian personally liable for any state taxes owed by the Ward.
Terminating a Guardianship
Occasionally a Guardianship is terminated because the Ward regains the capacity to manage his or her own affairs (for example, if a mental illness has been brought under control by medication); a Guardianship based solely on minority terminates when the minor turns 18. Otherwise, a Guardianship usually lasts for the remainder of the Ward’s life.
Upon termination, a Guardian of the Estate will generally file a final accounting with the court and turn any remaining assets over to the person(s) entitled to receive them (e.g., to the Ward, if he or she regained capacity or attained the age of majority). In cases where the Ward dies, the Guardian usually delivers any remaining assets to the Personal Representative of the deceased Ward’s estate; in some cases – such as where the Ward died without a Will – the Guardian can obtain court approval to administer the estate and distribute any remaining assets to the legal heirs of the Ward.
Other Resources
This Guardian Instruction video prepared by the Spokane County Superior Court contains additional information on the duties and responsibilities of a court appointed guardian. King County has begun distributing this informational guardian booklet to newly appointed guardians.
We provide advice and legal representation to Guardians, Trustees, Executors, Attorneys-in-Fact and other fiduciaries. We also represent interested parties in any matter related to a Guardianship, Power of Attorney, Trust, or Estate.
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