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
- 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.
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.
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’.
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.
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.