A guardian is a person or agency appointed by the court who is designated to act for someone who has been declared incapacitated. If you are concerned that a guardianship may be necessary for someone you care about, please call to set up a consultation. We can discuss the pros and cons of guardianship, the alternatives to guardianship, and whether a petition to start a guardianship is appropriate in your case. We represent petitioners, guardians, alleged incapacitated persons, and other interested family members in guardianship matters.
Frequently Asked Questions About Guardianship
A guardian is a person or organization appointed by the court to manage the financial or personal affairs for a person who is unable to manage their affairs themselves. A guardian may be appointed for a minor under the age of 18 or an incapacitated adult.
For purposes of guardianship, an adult is considered incapacitated if he or she has a “significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety”, or is at “significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs.”
Incapacity is legal determination. Just because a person has a diagnosis of a condition such as Alzheimer’s disease, he or she may not meet the legal definition of “incapacity” for purposes of guardianship.
If a person is able to manage some financial or personal matters, but needs assistance managing investments, making complex financial decisions, or needs protection from financial exploitation, the court may appoint a limited guardian. The law requires that a person’s liberty and autonomy should be restricted through the guardianship process only to the minimum extent necessary to protect the person from personal or financial harm.
Guardianship may be the only option when a person is at significant risk of financial or personal harm to themselves or others, and there are no adequate alternatives to guardianship. Alternatives to guardianship may include such options as having a Representative Payee, Durable Powers of Attorney for Health Care and/or Finances, or having assets in a trust managed by a trustee. Petitioning for guardianship is a serious decision, and an experienced attorney can help families explore whether there are any alternatives to protect the vulnerable person can be put in place, short of guardianship.
The Court can appoint either a lay guardian (such as a friend or family member of the incapacitated person) or a professional guardian for the incapacitated person.
In Washington State, guardians must report on a regular basis to the court. A Guardian of the Estate (finances) must keep careful records of income and disbursements and account to the court, typically on an annual basis. Some actions, such as selling real estate, require prior court approval. The court may require the guardian to post a bond or keep certain funds in restricted accounts. A Guardian of the Person (health, housing and welfare) must submit a personal care plan to the court and report any significant changes in circumstances. Family members and other interested parties may request to be notified of matters that come before the court.
- Any person interested in the welfare of an alleged incapacitated person (AIP) may petition for a hearing to have a guardian appointed for the AIP. The petition must be filed in the county where the AIP lives. The petitioner can nominate themselves, another person, or a qualified Certified Professional Guardian to be the guardian.
- The Alleged Incapacitated Person (AIP) must be notified of the petition, who filed it, and the date of the court hearing.
- At the time the petition is filed, the court will appoint a Guardian ad Litem (GAL) from the court’s registry. The GAL will meet with the AIP, explain the petition and the process, and determine if the AIP objects to the guardianship or the person or organization who has been nominated.
- The AIP has the right to his or her own attorney, and an attorney will be appointed from the court’s registry if the AIP does not select an attorney who is qualified to serve in that role. The AIP also has the right to attend the court hearing.
- The GAL will interview all persons with relevant knowledge, will obtain a medical report, and make recommendations to the court. After the GAL has made his or her recommendations to the court, there will be a hearing at which the court will decide if the person needs a guardian or a limited guardian, and who should be appointed as guardian.
It typically takes two to three months from the time the petition is filed until a guardian is appointed. The process is sometimes expedited if an emergency exists, or can also take longer if the Alleged Incapacitated Person or other parties are contesting the petition.
Guardian ad litem fees and attorney fees are established based on the amount of time spent. Attorney fees will typically be higher when the guardianship is contested. Our experienced guardianship attorneys can discuss possible costs after learning more about the circumstances of the case.
Protection Against Elder Abuse
In cases where an elder or incapacitated person is being abused, a petition for a protection order can be filed under RCW 74.34.
A “vulnerable adult” includes someone who:
- Is over 60 years old and without the functional, mental, or physical ability to care for him or herself.
- Someone who is 18 years or older and:
- Was found incapacitated
- Has a developmental disability
- Has been admitted to a DSHS-licensed care facility or receives in-home care from a provider under DSHS contract
- Self directs at-home care from a compensated personal aide
A petition for an order protecting a vulnerable adult can be filed when a vulnerable adult has been the victim of:
- Abuse (sexual, mental, physical)
- Financial exploitation
- The threat of any of these
A petition for an order of protection is sometimes necessary to protect a vulnerable adult, but alternatives should be explored. If you are concerned about an older adult who may be subject to abuse or neglect, please call me to set up a consultation.