What is a Guardian?

What is a Conservator?

How "incapacitated" must a person be to be "legally incapacitated?"

What does a Guardian do?

If a Guardian is appointed, what happens to the incapacitated person's legal rights?

Are there any limits to what a Guardian can do as regards the incapacitated person?

Can more than one person serve as someone's Guardian?

Is a Guardian eligible to be paid compensation for his/her services?

What if someone is only marginally incapacitated?  Are there different types of Guardianships (besides Person & Estate)?

For what situations is a Guardianship inappropriate?

How is a Guardian appointed?

And if the alleged incapacitated person is a Native American?

Who may file a Petition for Guardianship?

What does a Petition for Guardianship "say"?

What is usually the Court's first action taken upon the filing of a Petition for Guardianship?

When is no GAL required to be appointed?

What are the potential rights that may be lost upon the appointment of a Guardian?  Can someone lose them without having been told?

What is one of the first actions taken by the Court-appointed Guardian ad Litem?

Can a Guardian be appointed for someone who doesn't want one?

What are the safeguards to prevent the appointment of a Guardian for someone who doesn't want or need one?

What is the usual process of appointing a guardian, simply and generally?

What if someone needs a guardian, but there is no one to file a Petition for Guardianship or serve as Guardian?

How long does it take to have a Guardian appointed?

What if the alleged incapacitated person's situation is desperate & action on their behalf needs to be taken now?

How much does it cost to have a Guardian appointed?

Can a guardianship be modified or terminated?

A Guardian is a person appointed by a Court to manage the affairs of another, either a minor or an adult (called the "incapacitated person" or the "ward"), who the Court has determined to be legally incapacitated.

A person may be legally incapacitated in one or both of two ways:

• As to his/her Person

• As to his/her Estate

According to Washington law:

• Someone is legally incapacitated as to his/her Person when he/she "has a significant risk of personal harm based upon a demonstrated inability to adequately provide for [his/her] nutrition, health, housing, or physical safety."
   

• Someone is legally incapacitated as to his/her Estate when he/she "is at significant risk of financial harm based upon a demonstrated inability to adequately manage [his/her] property or financial affairs."

If a Guardian is appointed for someone's Person, the Guardian of the Person:

• Assesses the person's physical, mental, and emotional needs and any need for assistance in activities of daily living,

• Files with the Court within three months of appointment a care plan that identifies those needs and explains how they will be met,

• Implements that plan,

• Files a periodic status report of his/her actions, usually annually,

• Gives or withholds consent for medical treatment if the need arises, and

• In general makes personal and health care decisions for the incapacitated person.

If a Guardian is appointed for someone's Estate, the Guardian of the Estate:

• Manages the property and financial affairs of the incapacitated person,

• Files with the Court within three months of appointment an inventory of the person's assets,

• Files a periodic financial accounting of his/her actions, usually annually, and

• In general makes property and financial decisions for the incapacitated person.

A Guardian is not simply free to do whatever he/she thinks best.  For example, as regards the incapacitated person's medical treatment:

• If the views and values held by the incapacitated person before the incapacity developed are known, a Guardian is required to make decisions that are consistent with those views and values.

• If the incapacitated person can express a preference about a medical treatment issue, the Guardian is required to consider that preference before making a decision.

• In deciding whether to follow current expressions of preference, a Guardian is required to consider how well the incapacitated person understands his/her medical condition and any treatment options.

Furthermore, there are some actions that a Guardian cannot lawfully take, such as:

• Placing a person in a nursing home, institution, or other such facility against that person's will.

• Consenting to a person's commitment for mental health treatment against that person's will.

• Consenting to any therapy or other procedure that induces convulsion, or any psychiatric or mental health procedure that restricts physical freedom of movement.

Yes --- in a variety of ways:

• One person can be appointed as Guardian of the Person and another person as Guardian of the Estate.  

• Two (or more) persons ("co-Guardians") can share a single Guardian position, with either equal or different authorities, for example:
   

  • The co-Guardians may have equal authority, such that:

    • Any of them, acting independently and alone, can bind the guardianship, or

    • An act by the Guardian requires the consent of all of the co-Guardians --- this is essentially "Guardian by committee or board of co-Guardians."
       

  • The co-Guardians may have different authorities, for example:

    • Co-Guardians of the Person: One co-Guardian is solely responsible for making medical decisions, and the other co-Guardian is responsible for all other decisions, such as for food, housing, etc., or

    • Co-Guardians of the Estate: One co-Guardian is solely responsible for asset purchases and sales, and the other co-Guardian is responsible for all other decisions, such as day to day management, payment of bills, etc.

While a guardianship is inherently a rather cumbersome procedure, the appointment of Guardians and the marshaling out of their respective authorities and responsibilities is largely limited only by one's imagination.

Yes, Full Guardianships & Limited Guardianships.

The traditional type of Guardianship is known as a "Full" Guardianship.  In a Full Guardianship, the Court basically removes all the civil rights of the incapacitated person that can be removed by law, and transfers the authority to make decisions over those rights to the Full Guardian.  Realizing that something more subtle was needed, the Legislature eased its position by creating a "Limited" Guardianship, for persons who are largely capable of caring for themselves or arranging for their care --- but who nevertheless need assistance in specific areas.  In a Limited Guardianship, the Court removes only those specific rights that are shown to be needed to be addressed by another and transfers only those specified decisions to the Limited Guardian.

To illustrate this and the immediately preceding question, a popular arrangement is to have:

• A family member serve as the Limited Guardian of someone's Person solely for medical decisions, and
   

• A professional or financial institution serve as the Full Guardian of that Person's Estate, perhaps with the same or another family member as a co-Full Guardian of the Estate, essentially having veto-power over the professional or institutional co-Guardian.

Age, eccentricity, poverty, or medical diagnosis alone is insufficient to justify a guardianship. Other problems, like excessive drinking or unsafe sexual practices, simply cannot be "fixed" through a guardianship (or alternative means), because our society's laws protect personal freedom.

A guardianship is not a way to force a competent adult to do what someone else thinks he/she ought to do.  An adult who has the legal capacity to manage his/her own affairs has the legal right to make and act on decisions that others may view as unwise or not in his/her best interest.   A guardianship is generally available only if a person has a physical, mental, or psychological incapacity causing a significant risk of harm to him/herself.

Appointing a Guardian is a process of two steps, usually separated by around two months:

Filing:  In Washington, the process is initiated by the filing of a Petition for Guardianship in Superior Court, generally in the county where the incapacitated person resides.

Hearing:  At the hearing on the Petition, usually around two months later, the Judge determines, based on the evidence presented at the hearing, whether the alleged incapacitated person is, indeed, incapacitated according to Washington law and needs a guardian to manage some or all of his/her personal or financial affairs, or both.  If that determination is made, the Judge then determines who the guardian(s) should be and what authority the guardian(s) should have over the incapacitated person, regarding his/her personal or financial affairs, or both.

If the alleged incapacitated person is a Native American, the guardianship proceeding may be brought instead in Tribal Court.  Before filing for a guardianship involving a Native American, the Tribal Court, Tribal Council, or Tribal legal counsel where the individual is enrolled should be consulted to determine if it would be more appropriate to file the Petition for Guardianship in Tribal Court instead of Superior Court. (Tribal courts may exercise concurrent or exclusive jurisdiction over proceedings for incapacitated tribal members living on or near the Tribe's reservation.)  While guardianships are disfavored in Native American communities, a Tribal Court may:

• Provide a less formal and more culturally sensitive forum for decisions regarding an incapacitated tribal member,
   

• Be the only forum capable of asserting jurisdiction over any trust property he/she may have, and
   

• Be available for a proceeding involving a Native American living on that particular reservation but enrolled with another tribe.

The Petition asks the Court to:

• Determine that the person named in the Petition is legally incapacitated and needs a Guardian; and 

• Either:
   

  • Appoint one of more Guardians, either:

    • The Petitioner him/herself, or

    • One or more other named persons; or
       

  • Find one or more other suitable persons willing to be appointed as Guardian(s) and appoint them.

Upon the filing of a Petition for Guardianship for any adult and most minors, Washington law requires the Court to immediately appoint an independent person (called a "Guardian ad Litem" or "GAL") (generally, either a social worker or attorney certified by the state to be a GAL) to:

• Be the "eyes and ears of the Court" 

• Advocate for the best interests of the alleged incapacitated person (which may or may not be what the incapacitated person desires --- that is the job of his/her attorney) 

• Investigate whether a guardianship is actually needed and, if so, who an appropriate Guardian or appropriate Guardians might be, and 

• Report his/her findings and make recommendations to the Court.

The Guardian ad Litem is "the investigator and reporter" --- the Court is "the decision maker."

No GAL is appointed if:

• The minority of the incapacitated person is the only reason for the guardianship, and

• At least one of the parents of the child signs or consents to the Petition for Guardianship.

This is the typical situation, for example, if one of the child's parents (or other relatives) dies and if the child:

• Receives property under the Decedent's Will or as an inheritance,

• Is a beneficiary of a life insurance policy, IRA, or employee benefit plan of the Decedent, or

• Receives a damages award in a wrongful-death lawsuit resulting from the Decedent's death.

Washington law requires that the alleged incapacitated person be given notice about the rights that he/she may lose as a result of the appointment of a Guardian, such as the right to:

• Marry or divorce;

• Vote or hold an elected office;

• Enter into a contract;

• Make or revoke a Will or a Power of Attorney;

• Sue or be sued other than through a Guardian;

• Have a driver's license and drive;

• Buy, sell, own, mortgage, or lease property;

• Consent to or refuse certain medical treatment;

• Decide who shall provide his/her care and assistance; and

• Make certain decisions regarding the social aspects of his/her life.

Promptly following his/her appointment, the GAL:

• Meets with the alleged incapacitated person 

• Informs him/her that a Petition for Guardianship has been filed and what that means 

• Notifies him/her of:

  • The rights that he/she may lose upon the appointment of a Guardian,

  • His/her right to have the Court appoint an attorney to defend against the appointment of a Guardian, and

  • His/her right to have the issue of his/her legal capacity determined by jury trial, and

• Returns to Court for the appointment of independent legal counsel for the alleged incapacitated person if so desired.

1.  The process is managed and determined by an independent third party, the Court, applying Washington law.

2.  The Court employs a state-certified independent third party as investigator, the GAL.

3.  The alleged incapacitated person is required to be given notice that a Petition for Guardianship has been filed and the date, time, and location of its hearing by the Court, and he/she can appear at the hearing either personally or through counsel and defend him/herself.

4.  The alleged incapacitated person has the right to obtain a Medical/Psychological Report from his/her own physician and file it with the Court.

5.  The alleged incapacitated person has the right to have independent counsel appointed for him/her, to defend against the appointment; to have counsel of his/her choice; or, if he/she is unable to afford one, to have counsel paid at state expense.

6.  The alleged incapacitated person has the right to have the determination of his/her legal capacity made by jury trial.

7.  Any determination of the alleged incapacitated person's legal incapacity is required to be made under the standard of "clear, cogent, and convincing evidence," with the Petitioner having the burden of proof to make it.

1.  An interested person files a Petitioner for Guardianship in the Superior Court of the county where the alleged incapacitated person resides.

2.  The incapacitated person is given written notice that the Petition has been filed, together with a copy of the Petition.

3.  The Court appoints a Guardian ad Litem to make an investigation and report to the Court.

4.  The GAL meets and consults with the incapacitated person and possibly returns to Court for the appointment of counsel for him/her.

5.  The GAL obtains a Medical/Psychological Report regarding the incapacitated person, generally from the incapacitated person's primary physician, and files it with the Court.

6.  The GAL interviews family members, friends, etc; prepares a report and makes recommendations to the Court based on his/her investigations including the Medical/Psychological Report; files his/her Report of GAL with the Court; appears at the hearing; and advocates for the best interests of the alleged incapacitated person.

7.  The Court hears the Petition, reviews the documents filed with the Court, takes testimony from witnesses, and makes its determinations.

If an incapacitated person is being neglected or abused, the Washington Attorney General's Office may file a Petition for Guardianship on his/her behalf.  If you know of such a person in King County, call the Adult Protective Services' Office (206 341-7750) --- outside of King County, call 800 422-3263.  Other assistance in finding people to serve as a Guardian or to file a Petition for Guardianship may be available in King County from The Arc of King County (206 364-8140) --- for information outside of King County, check your telephone directory for a local Senior Information & Assistance office.

Washington is different from other states on this subject.  In Washington, the great majority of Petitions for Guardianship are filed by private parties, and virtually all Guardians are private persons, either individuals or institutions.  Other states have public agencies that perform the same functions, so, for example, in California, probably the majority of Petitions for Guardianship are filed by the Public Guardian (an office similar to the County Prosecutor or Public Defender), who also serves as the Guardian for those persons unable to afford their own.

Unlike in other states, such as California, Washington law does not provide for the appointment of a Temporary Guardian (analogous to a Temporary Administrator of a Decedent's estate), authorized to take immediate action.  Washington law does, however, provide for a variety of other emergency actions to be taken by either:

• The GAL or

• The Petitioner of the Petition for Guardianship or

• Any other interested party.

These measures usually involve obtaining from the Court an Order Authorizing Certain Action to Be Taken (such as for a change in residence or for medical treatment) or a Temporary Restraining Order (such as to stop ongoing abuse), under either the Guardianship statutes or the Vulnerable Adult statutes.

The major costs to have a Guardian appointed are:

• The Court's filing fee, currently $110,

• The Guardian ad Litem's fee,

• Any fee for the Medical/Psychological Report, and

• Any attorney's fee.

If the alleged incapacitated person's total assets are less than $3,000, the Court will waive the filing fee and the county will provide a Guardian ad Litem at no cost.

Yes.  If an incapacitated person believes that his/her Guardian should be replaced, that the Guardian's responsibilities should be changed, that the Guardian has acted inappropriately, or that he/she no long needs a Guardian, he/she may ask the Court to replace the Guardian or modify or terminate the guardianship, by writing to the Superior Court Clerk, who will refer the matter to a Judge for action.