Guardianship is the legal process by which the court appoints a designated person to act on behalf of another who has been found to be incapacitated either by age (minor) or by infirmity (physical and or mental).
History
Originally guardianship was considered an extension of the authority of the state. However, in 1995 the Washington State Legislature enacted numerous amendments to the existing guardianship statutes to provide more protection for the alleged incapacitated person.
These amendments also acknowledge that a full guardianship is not appropriate in every case. The amendments authorize limited guardianship if a full guardianship is not needed. Washington was the first state to authorize limited guardianship.
The guardianship statutes were further amended in 1977 and in 1991 to expand notice requirements; to define the role of counsel; to allow psychologists to participate in the determination of capacity; to create a guardian ad litem registry; to detail the duties of guardians; to specifically evaluate an alleged incapacitated person?s ability to vote; to allow interested persons to participate in the selection of the guardian; and to restrict guardians from placing an incapacitated in a nursing home or treatment facility against the person’s will.
In 1996 amendments were adopted to require courts to give even greater consideration to the use of alternatives to guardianship; give temporary injunctive relief to protect from abuse, neglect, abandonment, exploitation; to address other emergencies pending determination of the guardianship petition; to qualify that the alleged incapacitated person has the right to be represented by counsel of his or her choice; to testify and to present evidence at trial; to provide new timelines and extension procedures for the guardian ad litem; and to provide new timelines for the guardian.
Legal Process
The guardianship is commenced by filing a petition for appointment of guardian in Superior Court in the county in which the incapacitated person resides through the help of an attorney. This petition contains information about the alleged incapacitated person including a description of the alleged incapacity and why no less restrictive means can be taken. The petition also identifies the person requesting to be appointed as guardian and the most closely related family members. Following filing the petition in Superior Court the court appoints a guardian ad litem from the guardian ad litem registry to investigate the allegations of incapacity and to interview the persons involved, including medical providers. Once this information has been gathered the Guardian ad litem prepares a written report for the court. A Guardian ad litems duties are extensive and strictly construed. The appointed guardian ad litem becomes the eyes and the ears of the court and has the statutory duty to exercise his/her judgment in the best interest of the alleged incapacitated person. The guardian ad litem is burdened with advising the court on whether the alleged incapacitated person is at significant risk of harm as a result of his or her demonstrated inability to manage his or her own finances or to adequately provides for his or her nutrition, health, housing, and physical safety. Once the guardian ad litem report has been prepared, completed, and filed, a hearing is held to determine whether or not a guardianship will be established. At that hearing the alleged incapacitated person has a right to representation by counsel if they do not agree to the petition. Following the hearing the court will then make a determination as to whether or not a guardianship should be established and. If appropriate, a guardian will be appointed at that time and. the guardian ad litem is then discharged.
If a guardianship is established the designated guardian is required to file an oath and usually ordered to obtain a bond. Once the oath and bond are obtained Letters of Guardianship are issued by the clerk and the guardian then has authority to act on behalf of the incapacitated person.
Within 60 days of the establishment of a guardianship the guardian is required to file a personal care plan with the court and an inventory. The guardian is also required to make periodic reports to the court (usually on an annual basis) regarding the status of the guardianship and the accounting of the guardianship estate.
A guardianship terminates by court order or by the death of the incapacitated person.
Guardianship is a new experience for most persons and it is standard that a guardian should have questions concerning procedure and process from time to time. It’s important that the guardian consult with the attorney for the guardianship whenever any questionable issues arise in order make sure they are following their duty pursuant to RCW 11.92.04 duties of guardian and limited guardian in general and RCW 11.92.043 additional duties.
Attorneys Practicing in Guardianship: