Guardianship

What is guardianship? Guardianship is a legal relationship where the court gives one person (the guardian) the power to make personal and/or financial decisions for another (the incapacitated person or ward). A guardian may be appointed when the court determines that a person is a vulnerable person based on a pattern of conduct of not being unable to care for their self and / or their estate and is at risk of harm to their person and / or their estate. In Washington there is considerable flexibility in appointing a full or partial guardian.

When is a guardianship appropriate? Guardianship is appropriate when vulnerability or impaired judgment as demonstrated by a pattern of conduct poses a significant risk to a person's welfare. An evaluation by a court appointed guardian ad litem is necessary to establish the incapacity. Guardianship is sought when there are no other alternatives.

free report: power of attorney vs. guardianship

How can I become a guardian? Generally the process starts by seeing an attorney to determine if there are any least restrictive alternatives. Then online training is taken to educate the petitioner on their duties. Once the training is completed, a petition must be filed with the court requesting the appointment of a guardian. Then, the court appoints a guardian ad litem to conduct an investigation. The ward is served with notice of the petition. Notice and a copy of the petition are mailed to family members and care givers. After the guardian ad litem conducts the investigation, a report is prepared and circulated to interested persons. Finally, a hearing is held where a judge considers objections or concerns, decides whether a guardian should be appointed, who should be appointed, how much authority the guardian should have and whether a bond must be posted. This process usually takes 4-8 weeks.

How long does this appointment last? A guardianship appointment may last until the death of the ward or the guardian, until the ward is able to establish that he or she has capacity or until the guardianship is no longer necessary.

What authority does the guardian have? Unless limited by the court, the guardian has almost total control over the finances and the personal decisions of the ward. This includes deciding who will provide care for the ward, determining how the ward's funds will be spent, and making routine medical decisions for the ward. Unless the ward objects, the guardian makes decisions on where the ward will live. For some decisions, such as those involving extraordinary medical care, the administration of anti-psychotic drugs, or the sale of the ward's real estate, the guardian must seek the court’s advance approval.

What does a guardianship cost? There are filing fees, guardian ad litem fees and attorney fees. Attorney fees, by law, for these matters must be reasonable based on the amount of time it takes to provide the services. It is hard to give general estimates for services that can vary greatly depending on the circumstances. Before considering guardianship, we will explore other options that may be available.

Who pays for guardianship? Usually the estate of the ward pays the expenses of a guardianship. Once the court determines a guardian is necessary the court will also determine who should pay the costs of establishing the guardianship and may enter an award allowing fees to be paid or reimbursed from the ward’s assets. In some cases, the county will pay the filing fees and guardian ad litem fees if the assets of the ward are less than $3,000.

What are the responsibilities of the guardian? The guardian must account carefully for all of the ward's income and any expenditures made on his or her behalf. The guardian must make decisions in the best interest of the ward. The guardian first files an inventory listing the ward's assets and a personal care plan. Then each year [or every three years in some cases] the guardian must file a report with the court detailing how income and expenses were used and updating the court on the ward’s personal care plan. A final account must be filed when the guardianship is terminated.

Who pays for the annual reports? If the guardian chooses to have an attorney prepare the report, the cost will vary depending on the completeness of the guardian’s record keeping, the issues that arose during the reporting period and the amount of detail required due to the ward’s resources and situation. If the guardian prepares the report and files it with the court on his or her own, there is usually no cost. If an attorney assists usually the fees come from the ward’s estate.

What are the alternatives to guardianship? There are several less restrictive and less costly alternatives to guardianship. These include durable powers of attorney, representative payees, living trusts, and health care representatives. Each of these options may avoid or delay the need for a guardian. However, these documents need to be executed before the individual is incapable of doing so due to mental impairment, vulnerability or lack of capacity and must contain the authority that is needed.