Guardianship

In Washington State, a Guardianship is a legal arrangement designed to protect an individual or his or her assets. A Guardian is the person or agency appointed to make decisions for someone who is unable to make competent decisions for himself/herself.

In Washington State, a Guardianship is a legal arrangement designed to protect an individual or his or her assets.

A Guardian is the person or agency appointed to make decisions for someone who is unable to make competent decisions for himself/herself. To establish a Guardianship, a Petition must be brought in the Superior Court, and from that time forward the process is subject to the control and monitoring of the Superior Court. A Guardianship will only be ordered when it is determined that an individual is at significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety, or when an individual is at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs.

When appropriate, the Court will order a "limited guardianship," which allows an individual to retain the right to make some of their own decisions, but appoints a Guardian to make other decisions for the individual. In addition, a Guardianship will not be ordered when there is a less restrictive alternative available that could be used to assist the individual. One example of a less restrictive alternative to guardianship is a Durable Power of Attorney. [Please see the Estate Planning Section for a discussion of Durable Powers of Attorney]. In some other states, arrangements comparable to Guardianships are known as Conservatorships.

After a Petition is filed with the Court requesting the establishment of a Guardianship, and prior to the hearing for the appointment of a Guardian, the individual who is alleged to need a Guardian is identified as the Alleged Incapacitated Person, (the "AIP").

After a Guardian is appointed, the Alleged Incapacitated Person is referred to as the Incapacitated Person, (the "IP"). Other players who are involved in a typical guardianship case include:

1. the Petitioner, who is the individual requesting that a Guardianship be established;

2. the proposed Guardian, (also known as the Guardian nominee), who may be an individual or an agency, and who may also be the Petitioner;

3. the Guardian ad Litem, (the "GAL"), who is the court appointed investigator, responsible for investigating the facts of the case and recommending to the court whether or not a Guardianship should be established. In cases where the GAL recommends the establishment of a Guardianship, they are also required to recommend who should serve as Guardian; and

4. the Guardian, who is the individual who will be responsible for managing the affairs of the Incapacitated Person. The Guardian may or may not be the same individual who was the proposed Guardian/Guardian nominee.

In Washington State, Guardians can be either "Certified" or "Lay/family" Guardians.

Certified Professional Guardians, (CPG'S), may be either an individual or an Agency. A Certified Professional Guardianship Agency is required to have at least two CPG'S managing their business. All CPG'S are required to meet basic standards set by the Court, and are certified by the Office of the Administrator of the Courts. Lay guardians are family members or friends who are willing to undertake the responsibilities of a Guardian. Washington State Law currently requires lay guardians to complete a computer-based training session, which takes about two hours to complete. The Court will often appoint a lay guardian as guardian when there is a well qualified family member willing and available to accept the responsibility. It is important to note that all guardians are:

1. under the supervision and direction of the Court;

2. required to file periodic reports; and

3. must comply with established standards when making decisions on behalf of the Incapacitated Person.

In many respects, Washington State is ahead of the curve in implementing regulations designed to assure that the actions of the Guardian benefit the Incapacitated Person.

While that certainly bodes well for the Incapacitated Persons who are in need of the Guardianship, it also means that Guardians are faced with additional challenges in discharging their duties. We routinely assist Guardians, both Certified Professional Guardians and Lay Guardians, and family members with completing a variety of tasks required by the Court in the Guardianship context, including:

• Preparing and presenting to the Court Petitions to establish a Guardian;

• Providing required reports to the Court regarding the Incapacitated Person's finances;

• Providing required reports to the Court regarding the Incapacitated Person's health;

• Preparing and presenting to the Court documents to authorize the sale or transfer of a Incapacitated Person's assets, when appropriate.

It is a bittersweet day when one realizes that the time has come, that you can't wait any longer, that something has to be done to help a loved one. Whether it's your aunt, your grandmother, your parent or brother, the emotions are overwhelming. Clearly, not the best time to be making decisions alone or without guidance. If you are faced with the challenge of attempting to decide if a Guardianship is necessary for your loved one, or whether a less restrictive alternative may exist, or if you are a Certified Professional Guardian looking for help with your legal obligations, we are here to help. With decades of experience in the area of Guardianship, our attorneys and staff are well qualified to assist you in the area of Guardianship.