What is a Guardianship?
A guardianship is a court proceeding where an individual or agency is appointed by the court to make medical and/or financial decisions for an individual who is not capable of making those decisions.
Who Needs a Guardianship?
Guardianships generally fall into three categories:
- Minors who have no living parent able to make medical and financial decisions on behalf of the minor;
- Individuals who become disabled due to advanced age or dementia; and
- Individuals who were born disabled, who have turned 18, and whose parents can no longer legally make medical decisions for their child because he/she has attained the age of legal adulthood.
What is the Procedure for Guardianship?
An individual or agency (often a family member or a nursing home) petitions the court to have a guardian appointed for an individual. The Alleged Incapacitated Person must be personally served with the Petition, the Notice of Petition and a copy of the Order Appointing a Guardian ad Litem.
What is a Guardian ad Litem?
A Guardian ad Litem is an independent investigator (frequently an attorney or a social worker) who is responsible for investigating the circumstances, obtaining a medical report, interviewing the alleged incapacitated person, his/her family and caretakers, and making a recommendation to the court. The Guardian ad Litem’s efforts help the court determine the following:
- Is the person incapacitated? Unless the individual is a minor, the finding must be documented by a current medical report.
- Is there a less restrictive alternative, and if so what?
- If the person does need a guardian, who should be appointed as guardian?
- What should be the scope of the guardianship?
What is a Less Restrictive Alternative?
Less restrictive alternatives can include the use of a Power of Attorney, if the individual is capable of understanding and signing the document, and identifies a trusted person willing and able to act as power of attorney. Other less restrictive alternatives include establishing a trust where another person manages funds. Trusts can be managed either with or without court supervision, depending on the nature of the trust.
How Long Does it Take to Have a Guardian Appointed?
The hearing on the guardianship petition should occur within 60 days of the filing of the petition. If the hearing cannot be timely held, the parties must request additional time from the court.
What is a Guardian of the Person?
Guardians of the person are authorized to make medical decisions and locate appropriate care facilities for the incapacitated person.
What is a Guardian of the Estate?
Guardians of the estate make all financial decisions, collect all monies due the incapacitated person (such as social security and pension payments) and pay all bills.
What are the Reporting Requirements?
Guardians are supervised by the superior court of the county where the guardianship is established. They are required to report at a minimum of every three years. Some circumstances may require a yearly report.
Who Can Serve as Guardian?
Any individual over the age of 18 can serve as guardian, provided that he/she has no criminal history, no history of fraud or exploitation, and has taken the on-line training for lay guardians. Professional guardians undergo a training program approved by the state of Washington, are licensed by the Certified Professional Guardian Board, and must regularly update their credentials and take ongoing continuing education classes.
What are the Advantages of a Guardianship?
- Once a guardianship is in place, the Incapacitated Person can no longer enter into contracts, thus eliminating the risk of financial exploitation.
- One individual is appointed as the decision-maker, eliminating conflict among family members as to who should be in control.
- All financial transactions are reviewed and approved by the court.
Contact us to talk with an attorney about guardianships.