Guardianships: General Information, Process, Responsibilities

Guardianship cases are extremely complex.

When enacting the guardianship statute in Washington (Chapter RCW 11.88) the legislature’s intent was “to protect the liberty and autonomy of all people of this state, and to enable them to exercise their rights under the law to the maximum extent, consistent with the capacity of each person.

“The legislature recognized that people with incapacities have unique abilities and needs, and that some people with incapacities cannot exercise their rights or provide for their basic needs without the help of a guardian. However, their liberty and autonomy should be restricted through the guardianship process only to the minimum extent necessary to adequately provide for their own health or safety, or to adequately manage their financial affairs.”

The guardian’s role is to advocate for and protect the incapacitated person. A guardian may have substantial authority and duties to protect the financial and health of the person, while balancing those duties with minimizing the negative impact on the independence of the person.

When a guardianship has been established, incapacitated persons may lose the right to:

  • Marry or divorce
  • Vote
  • Enter into a contract
  • Have a driver’s license and drive
  • Buy, sell, own, or lease property
  • Consent to or refuse medical treatment
  • Decide who will provide care

Because establishing a guardianship may restrict an individual’s ability to exercise certain rights on their own, it should only be considered after alternatives to guardianship have proven ineffective or are unavailable.

  1. Determining the Need for a Guardianship.

To find that a person is incapacitated and in need of a guardian, the court must determine whether there is a significant risk of personal harm and/or financial harm.

There may be a significant risk of personal harm if someone has demonstrated an inability to adequately provide nutrition, health, housing, or physical safety for herself. An inability to adequately manage her own property or financial affairs may pose a significant risk of financial harm.

For guardianship cases, determination of incapacity is a legal decision, not a medical decision, which is based upon a demonstration of management insufficiencies over time. The court needs to see more than just a concern regarding someone’s age, eccentricity, poverty, or medical diagnosis as each of these factors alone are insufficient to justify a finding of incapacity.

  1. Who May Serve as Guardian?

A ‘lay’ guardian is usually a member of the incapacitated person’s family. A ‘professional’ guardian is someone who is not a member of the incapacitated person’s family and who charges fees for carrying out the duties of court-appointed guardian of three or more incapacitated persons.

The guardian can be any suitable person over the age of eighteen years who is of sound mind and has not been convicted of a felony (or a misdemeanor involving moral turpitude). The court can refuse to appoint any person whom the court finds ‘unsuitable’.

  1. What is the Court Process?

Guardianship cases are highly complex, and anyone interested in initiating a guardianship case should consult an attorney.

Any person or entity may petition for the appointment of a guardian, and the petitioner does not need to be the person who is appointed as guardian, as long as the petitioner is acting in good faith and upon reasonable basis.

The petition asks the court to find that a person is incapacitated and to appoint a guardian. The petition must be served upon the incapacitated person. A guardian ad litem (GAL) is temporarily appointed to investigate the need for a guardianship and make a recommendation to the court by filing a report.

Then, a hearing will take place shortly thereafter, and if the incapacitated person objects to having a guardian appointed, they are entitled to have their objections considered at the hearing. If the incapacitated person wants a lawyer but can’t afford one, the court will appoint a lawyer. The court will make a final decision at the hearing.

Guardianships can be modified or terminated by the court at any time. Even the incapacitated person can request that the court change the guardianship arrangements.

  1. The Guardian’s Duties and Responsibilities.

A guardian has a fiduciary duty to act in the best interest of the incapacitated person. This is the highest duty of care under the law. A guardian must always act with honesty and loyalty toward the incapacitated person.

In general, guardian may be appointed to monitor the conditions and needs of the incapacitated person, arrange for medical care, any provide care management services and other personal assistance.

If a guardian is appointed to assist with financial affairs (‘guardian of the estate’), they have authority over the incapacitated person’s property (real estate, tangible personal property, and finances). The guardian is required to manage and use the property for the incapacitated person’s support only, and account for it by filing periodic reports with the court.

The guardian should provide full disclosure to the incapacitated person – transparency, honesty, and integrity are of upmost importance.

Courts may appoint limited guardians for incapacitated persons who are capable of managing some of their personal and financial affairs. If a limited guardian is appointed, only specific limitations and restrictions will be placed on the incapacitated person, and they will keep any decision-making rights that are not specifically mentioned in the court order.

For more information, the Washington Court’s website is a great resource: Guardianship Portal.

The Nuts and Bolts of Parenting Plans: Residential Schedules in General

During the divorce process, one of the first questions parents often ask is, “What’s a normal parenting plan?”

While many parenting plans may contain similar provisions or schedules, every parenting plan is unique to each family’s circumstances. Additionally, a family with a history of domestic violence, abuse, or chemical dependency issues will likely have a parenting plan that includes certain restrictions to protect the safety and welfare of the children. These restrictions will be discussed in an upcoming blog post, so we won’t address them here. For purposes of this blog post, assume that restrictions are not an issue.

There is no standard or cookie-cutter visitation schedule for parenting plans (often referred to as a ‘residential schedule’). So when creating a parenting plan, attorneys will specify how the parents are splitting residential care in a manner that best fits that family.

One parent is designated as the primary custodial parent (the children live with this parent the majority of the time), and the other parent would be scheduled to care for the children on specified days and dates.A good place to start is a simple split-weekend schedule, with alternating mid-week visits.

Here’s what that provision may look like in a parenting plan. The children will live with Parent A, except when they are scheduled to live with Parent B as detailed below:

  • Weekends: every other weekend, from Friday after school until school on Monday morning. If school is not in session, then 4:00pm on Friday to 9:00am on Monday.
  • Mid-week: every other week, alternating with the weekend schedule, from Thursday after school until 8:00pm. If school is not in session, then 4:00pm to 8:00pm on Thursday.

This means that Parent B would have one overnight visit on the weeks that s/he is not scheduled to visit the children that following weekend. Below is an illustration of a 5-week calendar. Parent B’s visitation is scheduled on the blue days.

In addition to the weekly schedule, parenting plans also address holidays and special occasions, including Martin Luther King Day, President’s Day, Spring Break, Mother’s Day, Memorial Day, Father’s Day, Labor Day, Thanksgiving, Winter Break, New Year’s Day, and the children’s birthdays, as well as any other special holidays or occasions celebrated by the family.

The easiest way to allocate holidays is to simply designate that one parent has the children in even years and the other parent has the children in odd years.

Finally, the parenting plan will address summer vacation.

Typically, each parent is granted one or two weeks of uninterrupted vacation time with the children each summer. The parents should be required to coordinate by providing notice of their intended vacation days to the other parent well in advance of the summer break. For example, Parent A gets first choice of summer vacation dates in even years, while Parent B gets first choice in odd years.

Although the custody process is not ideal for any family, whether through a divorce or between unmarried parent, having a detailed parenting plan that leaves little room for debate or interpretation will help avoid unnecessary confusion or conflict down the road. The goal is to honor both parent’s constitutional right to parent their children in a way that serves the children’s best interests. And approaching parenting plan negotiations in good faith will certainly benefit the family.

Wills: What You Need to Know

Are there different kinds of Wills?

Yes. The traditional type of Will is sometimes called a ‘self-proving Will’ or ‘testamentary Will’, and is the type of Will most people are familiar with. There are also ‘holographic Wills’, which are handwritten and not signed by witnesses, but these are not considered valid in Washington and will not hold up in court. Finally, ‘oral Wills’ are spoken testaments, but are not valid in Washington.

What does a Will do?

Creating a Will gives you sole discretion and allows you to control how your assets are distributed after you have passed away. Wills let you decide how your family heirlooms, jewelry, cars, property, and other belongings will be distributed. Furthermore, if you have a business or investments, your will can direct the smooth transition of those assets as well.

What if I die without a Will?

If you do not have a Will when you die, you will die ‘intestate’ and the State of Washington will oversee the distribution of your assets according to a set formula. Typically, the formula results in half of your estate going to your spouse and the other half going to your children. This can cause the sale of the family home or other assets, which might negatively affect your surviving spouse.

Who is in charge of my Will after I die?

When you create a Will, you will name a person to be the Personal Representative (sometimes called an ‘Executor’ in other states). Your Personal Representative is required to file your Will with the court to begin the Probate process (which is court-supervised) and distribute your assets.

Who can inherit my assets?

Anyone! You can give your assets to whoever you want – your children, other relatives, charities, friends, and so on. You have complete control.

Who should be my Personal Representative?

Spouses typically name each other as Personal Representative, but you’ll also name an alternate (the ‘back-up’) in case your spouse dies before you and you haven’t updated your Will.

Does a Will cover ALL of my assets?

Certain assets are not controlled by your Will. This includes community property, life insurance payouts, retirement accounts, and investment accounts that are designated as “transfer of death.”

What about taxes?

A properly prepared Will can minimize estate tax liability, particularly for people with large estates.

What if my children are minors when I die?

If you have minor children, a Will allows you to dictate who will care for them and how they will be cared for. Not many people realize that state authorities will step in if both parents have died and there are minor children – there is an assumption that a relative will automatically be able to take care of your children. Unfortunately, if you don’t have a Will with a guardianship provision, your children will likely be placed in foster care until a court decides who should be named guardian.

Legal Guides

Durable Power of Attorney: What You Need to Know

Who needs a Power of Attorney?

Everyone! This is a basic legal document that everyone should have – it’s your “go-to” when there’s an emergency. Specifically, a good time to think about getting a Durable Power of Attorney is in these situations:

  • You’re planning to travel.
  • You’re 18 years old and going on your senior trip.
  • You’re in your early twenties and moving away for college.
  • You participate in activities that could result in a serious injury, like skydiving, rock climbing, SCUBA diving, parasailing, etc.
  • You’re recently divorced, separated, or widowed and your previous spouse is listed as your agent in your current Durable Power of Attorney.
  • You’ve been diagnosed with a serious condition or disease, like MS, ALS, or cancer.
  • Dementia and/or Alzheimer’s runs in your family (do not wait until you’ve been diagnosed).
  • You found a Durable Power of Attorney on the internet.
  • Your agent in your current Durable Power of Attorney is no longer available.
  • You currently don’t have a Durable Power of Attorney.

Answers to the Most Common Questions

  • What is a Power of Attorney? A Power of Attorney is a legal document that gives another person, usually your adult child or spouse, the authority to act as your attorney-in-fact or legal agent (“agent”).
  • Does my agent have to be an attorney? No. Don’t be confused by the name of the document; any adult can be your agent.
  • What does “durable” mean? Most people have a Durable Power of Attorney (“DPOA”). The term “durable” means that the Power of Attorney becomes effective when a doctor has declared that you’re mentally or physically unable to handle your affairs (“incapacitated”).
  • What if a Power of Attorney isn’t durable? A “regular” Power of Attorney is typically used for a specific purpose. After the purpose has been fulfilled, it stops working. For example, if you have a last minute out-of-town business trip and will need someone to sign important documents on your behalf while you’re gone, a Power of Attorney will allow your agent to sign for you. Once the documents are signed, the Power of Attorney is no longer effective.
  • Are there different types of Durable Powers of Attorney? Yes. There are two types of Durable Powers of Attorney: one for finances and one for healthcare.
  • Why would I need a Durable Power of Attorney for Finances? With a Durable Power of Attorney for Finances, your agent will have the authority to manage your finances when you become incapacitated. If you’re injured in a serious accident that results in you being in coma, your Durable Power of Attorney will “kick in” and your agent will be able to pay your bills, access investment accounts, and manage other financial matters until you are able to do so on your own. It will also allow your agent to purchase property, sell property, and buy cars .
  • Is there anything a Durable Power of Attorney for Finances won’t allow? Yes. A Durable Power of Attorney for Finances will not allow your agent to make gifts (like giving another relative your money or property), and it will not allow your agent to change your estate planning documents. If you don’t want your agent to be able to purchase or sell property or buy cars, your document can be tailored to fit your specific rules and goals.
  • Why would I need a Durable Power of Attorney for Healthcare? A Durable Power of Attorney for Healthcare will allow your agent to make medical decisions and access your medical information while you’re in a coma. If your surgeon or physician need to consult with someone prior to conducting a procedure, your agent will be able to discuss the situation with your doctor. For instance, if your agent knows that you would never want a blood transfusion, she or he will be able to make that decision by instructing the doctor of your wishes.
  • Is a Durable Power of Attorney for Healthcare different from an Advance Healthcare Directive? Yes. An Advance Healthcare Directives (sometimes referred to as “Living Wills”) are only used when you’re in a vegetative state and there is no hope of recovery. Your Advance Healthcare Directive will instruct your doctor on whether or not you want to remain on life support.
  • What happens to my Durable Powers of Attorney when I die? To say bluntly, your Durable Powers of Attorney will die with you. Most people think that Powers of Attorney continue to work after someone dies, but they’re actually thinking of the “Personal Representative” named in a Will. Basically, a Durable Power of Attorney is intended to give your agent the ability to make the same decisions you would make if you weren’t incapacitated. Once you die, your decision-making ability dies, too – so does your Durable Power of Attorney.
  • Who should be my agent? Anyone over the age of 18 can be your agent. The key is choosing someone who you trust immensely. The person named as your agent in your Finances document does not have to be the same person named in your Healthcare document. If your spouse can handle the bills when you’re incapacitated, but would be too emotional discussing medical procedures with your doctor, you should name another person. Or if your brother is bad with money, but he handled your parents’ healthcare situations really well before they passed away, then he might be a good choice only as your Healthcare agent. Be sure to choose someone who is good at managing money and someone who will honor your medical decisions.

Living Wills & Advance Directives: What You Need to Know

What are Advance Directives?

In general, Advance Directives are legal documents that allow you dictate your wishes concerning medical treatment.

Are there different types of Advance Directives?

Yes. There are Advance Healthcare Directives and Advance Mental Health Directives.

What is an Advance Healthcare Directive?

An Advance Healthcare Directive (commonly known as a “Living Will”) is a legal document used only if you have a terminal condition, irreversible coma, or other permanent unconscious condition and there is no reasonable hope of recovery (vegetative state with no brain activity).

What does an Advance Healthcare Directive do?

An Advance Healthcare Directive would let your doctors and family know whether or not you want treatment (life support) to be withheld or withdrawn, and whether or not you would want artificially provided nutrition (food) and hydration (water) stopped under these circumstances.

What is an Advance Mental Health Directive?

Advance Mental Health Directives, also called Psychiatric Advance Directives (or “PADs”), describe what a person wants to happen if at some time in the future they are diagnosed as suffering from a mental disorder, or if they lose capacity to give or withhold informed consent to treatment during serious episodes of psychiatric illness.

What does an Advance Mental Health Directive do?

This document can inform others about what treatment they want or don’t want from psychiatrists or other mental health professionals, and it can identify a person to whom they have given the authority to make decisions on their behalf.

What is a POLST?

“POLST” is an acronym for “Physician Orders for Life-Sustaining Treatment.” The POLST form helps individuals who have a serious illness or frailty. It is a medical form that records patients’ treatment wishes in what may be their last year of life.

How do I get a POLST?

A POLST Form is completed by a health care professional in conversation with the patient. Since it is a medical order it must be signed by a health care professional to be valid.

Why do I need a POLST if I have an Advance Directive?

EMTs (emergency medical technicians) cannot honor Advance Directives. Once emergency personnel have been called, they must do what is necessary to stabilize a person for transfer to a hospital. This is why having a POLST is important: POLST forms are bright green, and are usually hanging on a person’s refrigerator or are out in the open so that an EMT is aware of your instructions.

Why would I need Burial or Funeral Instructions?

Burial Instructions allow you to minimize your relative’s distress after you’ve passed away. You can make your survivors’ task easier by leaving a letter containing instructions and directions regarding your funeral, memorial, wake, etc. Some people choose to purchase their cemetery plot or columbarium before their death, and/or provide that a certain amount of money from their estate be set aside for funeral costs.

Pet Trusts (Estate Planning for Pets)

Did you know that there are more pets in Seattle than children? And we aren’t the only pet-loving city: there are approximately 80 million pet dogs and cats in the United States alone. In 2015, pet-parents spent over $60 billion caring for their pets. According to the American Pet Products Association, the average annual spending by a pet-parent in the United States is $967 for dogs and $643 for cats.

Most of us (myself included) consider our pets to be family members – affectionately referred to as our ‘fur-babies’, if you will. However, the vast majority of those pet-parents don’t have a plan for who will care for their companion animals when they’re no longer around.


I’ve met quite a few clients who simply assume that a family member will step in as guardian of the pets. In reality, promises made by friends and family often fail due to allergies, conflict with other pets, and rental properties’ rules regarding pets. Some pet-parents just assume they’ll outlive their pets so there’s no need for planning.

What about emergency situations? Who will take care of your pet if there’s an accident? 

There are several ways to plan for your pet’s well-being in the event of your incapacity or death: Wills, Pet Protection Plans, and Pet Trusts. A Will is only valid after death, a Pet Protection Plan is essentially a fill-in-the-blank contract, while a Pet Trust names a guardian for the pet and enlists someone to ensure that this person follows specific instructions.

Pet Protection Plans

A Pet Protection Plan (PPP) is essentially a basic contract that establishes ongoing care for a pet when pet-parents are unable to care for them. Like the Pet Trust, a PPP is valid during the pet-parent’s lifetime as well as after the pet-parent’s death. However, it can’t guarantee that the pet-parent and their pet will remain together in a long-term care facility (only a Pet Trust can do that). The PPP is a simple option and a bit more affordable, but most pet-parents would rather be given the guarantee that their wishes will be followed and their pet is cared for properly.

Pet Planning with Wills

To put it bluntly, a Will is not sufficient and won’t guarantee protection of your pet. First of all, instructions in a Will aren’t enforceable; the purpose of a Will is to distribute property. So any language giving instructions or making requests won’t be legally enforceable. The Court will not enforce your request that your sister Jane regularly take Scout to a specific veterinarian or use a specific amount of money from your estate only for Scout’s care.

Second, there’s going to be a waiting period between the day of your death and the day your Will is submitted to the court to begin the Probate process. It can take weeks or months for your family members to find an attorney they feel comfortable with, make an appointment, hire that attorney, and for the attorney to find time in her or his schedule to begin Probate. And if there’s a dispute among the family or battles with creditors, Probate can last years.

What is your pet going to do in the meantime? Go to the neighbors? Stay with a relative? Will it be safe there? Does that relative have unfriendly pets? Do they have young children who are rough with animals? What happens when your dog defends himself against the guardian’s own pet or child – will he be euthanized? This is already going to be a difficult time for your pet – they’ve lost you, after all. Instability can be frightening and traumatizing for your pet.

Third, Wills distribute assets and property immediately – not over a period of time like with a Trust. So if your Will states that $2,000 will be given to the pet guardian, that person is going to immediately have access to the entire $2,000 and no one will be monitoring how that money is actually spent.

My dog, Philip. © Rachel Bender

Finally, a Will does not “kick in” until after you have died. So what happens to your pet if you become incapacitated? Wills cannot address the possibility that the pet may need to be cared for during the pet-parent’s lifetime.

Pet Trusts

A Pet Trust is a legal document providing for the care and maintenance of a pet in the event of the pet-parent’s incapacity or death. Typically, the pet-parent will name someone (the Trustee) to hold property (usually cash) “in trust” for the benefit of the pet(s), and of course name someone to be the pet’s guardian. The Trustee will make regular payments to the pet guardian specifically to care for the animal(s). This is particularly advantageous for companion animals that have longer life expectancies than cats and dogs, such as horses and parrots. In 2001, Washington enacted RCW § 11.118.005 – 11.118.110, which states Pet Trusts are legally recognized and enforceable documents.

Trusts are legally enforceable documents, so pet-parents can be assured that their instructions will be followed. One of the best aspects of having a Pet Trust is that they can be extremely specific and customized.  For example, if your cat only likes a particular brand of food or your dog needs daily walks at his favorite park, or if your pet must go to the veterinarian four times a year, this can be specified in the Pet Trust.

Revocable Pet Trusts can be effective immediately or as soon as the pet-parent becomes unable to care for their pet due to incapacity (sick, injured, comatose, etc.) Since pet-parents know the particular habits of their companion animals better than anyone else, they can describe the kind of care their pets should have and list the person(s) who would be willing to provide that care.

Testamentary Pet Trusts are set up in the provisions of your Will and only goes into effect at your death. Since this Trust does not exist prior to your death, it can be funded out of your estate’s assets.

Furthermore, Trust Administration is a much better alternative to the the court-supervised Probate process. After a pet-parent dies, the Trustee will begin the Trust Administration process – which is typically more efficient and sometimes less expensive than Probate. Additionally, Trust Administration is completely private (a Will becomes a public document when it’s filed with the court for Probate).

One of the most wonderful aspects of a Pet Trust is that it can ensure that the pet-parent and pets will remain together in the event the pet-parents moves to a nursing home or assisted living facility. Studies have shown that seniors receive increasing benefits from their pets—lower blood pressure, increased exercise and circulation, reduced anxiety and stress, boosted mental acuity, enhanced opportunities for social interaction, decreased loneliness, and may even live longer.

Only legally enforceable documents can guarantee a pet’s secure future. Our pets are completely dependent on us for everything – we owe them (and ourselves) the peace of mind that comes with knowing they will always be safe and cared for, even when we aren’t around.