A Guardianship is a court proceeding whereby one can obtain the legal right to make decisions regarding the property and/or personal affairs of another. A Guardianship is similar to a Power of Attorney in that they both deal with substitute decision making.
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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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