MATT PERKINS, ATTORNEY AT LAW

This page contains answers to some basic questions about guardianship in Washington State.

Guardianship is a legal arrangement where someone can handle the affairs of another. The "guardian" is entrusted with the care and custody of the "ward," and this usually includes control of all the assets of the ward as well as business and health care decision-making and substantial control over the affairs of daily living. A guardianship is established by a legal proceeding overseen by a judge or court commissioner who must make a finding that the "alleged incapacitated person" (the AIP) is unable to manage their own affairs and that there are not "lesser restrictive alternatives" which could be used to avoid the imposition of a guardianship. Commonly, for example, older persons have established powers of attorney in trusted family members or friends who can manage their affairs without the legal determination required in a guardianship.

The responsibility borne by the Guardian is a serious one: they must not only perform their duties of care with the utmost of honor, but they should also attempt to do so in a manner that maintains the highest degree of dignity for the person who becomes dependent upon them (after the establishment of the guardianship, this person is known as the "ward." The guardian faces a myriad of challenges including the need to work with family members who may have differing ideas about what is right for the ward and various responsibilities not unlike those associated with running a small business.

How does a guardianship come about?

Under the laws of Washington, the normal procedure in a guardianship action is for a petitioner to come forth and ask the court to make a determination that the AIP requires someone else to manage their affairs. Although the distinctions may be difficult to discern, guardianships are thought to consist of two basic types: the AIP my only require assistance with managing finanical affairs (termed a guardianship of the estate) or they may require assistance in making medical decisions and other mattters more closely related to daily living (this is termed a guardian of the person). Most commonly both kinds of authority are vested in one person but one or the other may granted alone or they may be vested in different individuals.

The petitioner may be a concerned family member, but may also be some other party such as a social worker or sometimes the representative of a guardianship company who may seek appointment. Once a petition is filed, the court appoints a "guardian ad litem, typically an attorney themself, who is supposed to serve as in independent party and conduct an inquiry into the living situation, family situation, daily life, and competency of the AIP. A physician completes an evaluation, and the court reviews the reports from these individuals as well as any other relevant information such as the testimony of a family member or associate or the AIP themself. The judge or court commissioner then weighs all the information and makes an appointment that is considered final unless some party initiates a formal appeal or subsequently brings a successive petition to change that appointment.

Because of the serious nature of a guardianship, the Alleged incapacitated person has a right to an attorney and the Guardian ad Litem is under a duty to report to the Court any expression of doubt or disapproval of the guardianship that may come from the alleged incapacitated person (as noted above, this person is often referred to as the AIP). Family members, too, have a right and in some cases a responsibility to intervene but, because guardianship litigation is very expensive, all parties should carefully consider the issues and the possible outcomes before initiating legal challenges. They should also weigh the cost of any proposed legal effort against the potential benefit to the AIP, who will likely bear the cost of their actions.

What are some disadvantages to guardianship?

Guardianship is an important tool in the array of options available when an older person or perhaps a relatively young but disabled person requires assistance in conducting business, making medical decisions, or managing the affairs of daily living. However, the system is not perfect and the guardian may do a poor job or they may simply be very expensive. Should problems arise they will likely go unadressed without active intervention from a caring friend, family member, or independent party such as a social worker.

Guardianship laws are based on the premise that, once appointed, a guardian will act in the interests of their ward and the mechanisms for the treatment of any problems that may develop are inefficient, expensive, and uncertain. Guardians have been known to help themselves to the assets of their ward, they may be distracted or incompetent, or they may be driven toward providing and billing for extra services that the ward does not necessary require. In addition, a guardian is given a broad range of power over the life of their ward and even their interaction with friends and family members; for a variety of reasons a guardian may exercise that power in a manner that places their own interests above those of the ward or the ward's family. These problems can occur whether the appointed guardian is a naive family member or a trained professional. Guardianship not only results in a reduction in the rights and autonomy of the ward but it is expensive. The costs associated with the guardianship can eat up the life savings of someone on limited income and may even make a significant dent in larger estates. The ward typically bears all costs of the initial appointment as well as ongoing case management and reporting to the court, and most if not all expenses associated with any dispute that may arise between the guardian and another party. Any party initiating a guardianship petition should carefully weigh the alternatives. See Family Law Preference 2008  for discussion of a current legislative effort intended to address the courts' preference for professional guardians over the appointment of family members.

How much work is involved in serving as the legal guardian of another person?

As already noted, the responsibilities of a guardian are quite significant. The guardian must not only care for the assets of the ward, and keep proper accounting so they can at any time report what they may have done with those assets, but they have a duty to look out for the best interest of the ward. This frequently includes making arrangements for the payment of monthly bills, hiring and firing caregivers, dealing with medical issues, and a whole host of other matters. Generally, the guardian has broad authority to make decisions on behalf of the ward but there are limits: sometimes the court will impose legal blocks preventing the guardian to access certain investments formerly held by the ward, for example, and the guardian may not have the ward evicted from their residence without further court order if the ward and guardian disagree about where the guardian shall live.

Beyond the day-to-day duties, the guardian has a duty to report to the court once a year, once every two years, or once every three years. Court forms for this purpose are available at the King County Superior Court website, at, http://www.metrokc.gov/kcscc/guardianship.htm.