How to Establish a Guardianship

Posted over 5 years ago. Applies to Washington, 6 helpful votes

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1

Introduction

A Power of Attorney is generally preferable to a Guardianship because it is less expensive & affords more privacy. In fact, a Guardianship will not be imposed on someone if the court finds that a less restrictive alternative, such as a Power of Attorney, is available. However, the court does have the power to revoke a Power of Attorney if it finds good cause to do so, such as if the Power of Attorney was obtained by fraud or duress. A Guardianship may also be necessary if an incapacitated person has no Durable Power of Attorney. A Guardianship can deal with personal & medical decision making, referred to as a Guardianship "of the Person"; it can deal with property & financial matters, referred to as a Guardianship "of the Estate"; often an incapacitated person will need a Guardian of both the Person & Estate. If the incapacitated person, or Ward, retains the ability to handle some of his or her own affairs, a "Limited" Guardianship of the Person and/or Estate may be established.

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Establishing a Guardianship - Rights of Alleged Incapacitated Person

A Guardianship cannot be created overnight; the law presumes an individual is competent until a finding of incapacity is made, with due consideration for the legal rights of the alleged incapacitated person. The incapacitated person is entitled to notice of the Guardianship proceeding; the right to an attorney to represent him/her, even if he/she cannot afford one; & the right to a jury trial on the issue of their capacity.

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Establishing Incapacity

Mere eccentricity or poor decision making skills alone do not justify a Guardianship; a court must find a person is legally "incapacitated" under the Guardianship statutes before a Guardian can be appointed. A person may be deemed incapacitated as to his/her Person if the court determines he/she has a significant risk of personal harm based upon demonstrated inability to adequately provide for nutrition, health, housing, or physical safety. A person may be deemed incapacitated as to his or her Estate if the court determines he/she is at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs.

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Guardian ad Litem

Upon the filing of a Guardianship petition, the court will automatically appoint a "Guardian ad Litem", or "GAL"; the appointment is required by the Guardianship statutes. The GAL is not a temporary Guardian, the primary role of the GAL is to conduct an investigation & file a report with the court addressing whether or not a Guardian or Limited Guardian should be appointed, &, if so, whether the person seeking to be Guardian is an appropriate choice. Because the GAL needs time to conduct his/her investigation & complete the report, the hearing on the Guardianship is frequently scheduled 50 to 60 days from the date the petition is filed; a hearing can be heard sooner, if circumstances warrant; or, be delayed in complicated cases to give the GAL & other parties time to prepare. (By law, the hearing must be held within 60 days of filing the petition, but the court can waive that deadline for good cause).

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The Role of a Power of Attorney as it relates to Guardianships

If the alleged incapacitated person has a Power of Attorney in place, the GAL report must specifically address whether or not it constitutes a valid alternative to Guardianship. Also, Washington law permits a person to include a nomination of Guardian within a Power of Attorney, and if a court subsequently determines that a Guardianship is necessary, the person nominated in the Power of Attorney must be appointed unless the court finds good cause not to do so, or the person nominated is disqualified from serving. Similarly, a parent may nominate a Guardian for minor children in both a Power of Attorney and Will, and in any subsequent Guardianship proceeding, the court is obligated to appoint the person(s) nominated by the parent unless the nominee is not qualified to serve.

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Qualifications to be a Guardian

There are few formal qualifications necessary to serve as a Guardian; generally, a Guardian must be over 18, of sound mind, and have never been convicted of a felony or misdemeanor involving moral turpitude. However, the court can decline to appoint a person found to be unsuitable; generally, the court will not appoint a person as Guardian of an incapacitated person's estate if that person has a history of personal financial problems (such as excessive debt or bankruptcy).

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Guardianship of a Minor

Persons under the age of 18 may be found to be incapacitated, and in need of a legal Guardian due to their age. As noted above, a parent may nominate a Guardian for minor children in the parent's Durable Power of Attorney or Will. The procedures for appointing a Guardian for a minor is generally as outlined above, except that no medical report is necessary if the sole basis for the Guardianship is the minor's age. A Guardianship based solely on minority will generally terminate automatically when the minor becomes an adult; therefore, when seeking a Guardianship for a minor who is incapacitated due to a mental illness or physical disabilities, it is better to seek a permanent Guardianship on that basis rather than one based on minority alone.

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Fees in Guardianship Proceedings

If the court finds that the Guardianship petition was brought in good faith, all the fees incurred by the GAL and any attorney appointed for the alleged incapacitated person will be paid from the assets of the alleged incapacitated person (unless he or she is indigent, in which case these fees are paid by the county). The court has the authority to order the alleged incapacitated person to pay legal fees incurred by other parties as well. In fact, the court has the authority to order any party to pay the fees of any other party to the proceeding. So long as the petition was brought in good faith and the relief sought was appropriate, the court is likely to permit the petitioner's attorney fees to be paid from the assets of the incapacitated person; conversely, if the court finds that the petition was frivolous or the petitioner was unnecessarily litigious, the court may order the petitioner to bear his/her attorney fees, & to pay some or all of the fees incurred by other parties.

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Lay vs. Professional Guardian

The court will often appoint a qualified family member as Guardian, such as a spouse, adult child, or even a friend. A resident of another state may serve as Guardian for a Washington resident, provided they appoint a Resident Agent. In some cases, a Professional Guardian may be appropriate. Although they charge a fee for their services, they are experienced in handling other people's affairs, knowledgeable about the law as it applies to Guardians, & frequently have a staff member on call 24/7 to handle emergencies. Even if a family member is qualified to serve, difficult issues may arise (i.e. the incapacitated person may be combative or difficult to deal with). In such cases, a Professional Guardian can help by grappling with difficult decisions, allowing the family member spend time with a loved one without being a target of his/her anger or frustration over Guardianship matters.

Additional Resources

Law Office of John S. Palmer

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