A guardian is a person or agency appointed by a court to manage the affairs of another, called the ward or incapacitated person. 

Guardianship is the management of the affairs of a person who has been judged unable to manage his/her own affairs. It is a legal relationship between a competent adult and a person who is 18 or older, and who has a disability which causes incapacity. The disability may be caused by:

Guardians are appointed by Superior Court judges or court commissioners. Appointments are made in response to petitions filed in the Superior Court.  Any interested person may file a petition. This does not mean they want to be the appointed guardian.

The petition asks the court:

• to determine that the person identified in the petition is incapacitated, and
• to appoint a guardian.

Before Guardianship is granted, four steps must be taken:

• Notice of the guardianship petition must be given to the person identified in the petition;
• The court must appoint a person (called a “guardian ad litem”) to conduct an investigation and report to the court;
• The guardian ad litem must obtain a statement from a physician or psychologist; and
• A hearing must be held.

The right to privacy and independence in determining how to manage one’s own affairs is paramount and should be protected.

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• ¨ Access to and release of confidential records and papers
• ¨ Decisions concerning education or counseling
• ¨ Determining and monitoring place of the individual’s residence
• ¨ Giving gifts
• ¨ Healthcare
• ¨ Initiating, defending or settling lawsuits
• ¨ Lending or borrowing money
• ¨ Making a will
• ¨ Paying or collecting debts
• ¨ Possessing or managing real or personal property or income
• ¨ Traveling

Liberty and autonomy should be restricted through the guardianship process only to the minimum extent necessary to adequately provide for their own health or safety, or to adequately manage their financial affairs. (RCW 11.88.005 Legislative intent.)

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RCW 11.88.010(1) defines when a person may qualify for a guardianship.

Guardianship of the Person:

The individual has a significant risk of personal harm based upon a demonstrated inability to adequately provide for

• nutrition,
• health,
• housing or
• physical safety.

Guardianship of the Estate:

The individual has a significant risk of personal harm based upon a demonstrated inability to adequately manage

• property or
• financial affairs.

Practical questions determining need for guardianship:

• Does the person understand that a particular decision needs to be made?
• Does the person understand the options available in any decision?
• Does the person understand the consequences of each option?
• Is the person able to properly inform appropriate parties once the decision has been made?

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In making the selection of an individual to serve as guardian, first consideration is usually given to those who play a significant role in the person’s life. The guardian should be someone who is both aware of and sensitive to the needs and preferences of the person with a disability. It is important to remember that guardianship is a relationship in which the court places trust and confidence in the capability and integrity of another. It is within the power of the Court to name co-guardians.

Any suitable person at least 18 years of age who is not of unsound mind, has not been convicted of a serious crime and meets any certification requirements and is acceptable to the court, may be named guardian of an adult with disabilities.

Any agency, public or private, may serve as guardian of the person or estate, if the court finds that it is capable of providing an active guardianship program.

A bank may be appointed guardian of the estate but not guardian of the person.

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Guardianship can be requested by anyone who is interested in the incapacitated person’s well being. In most instances an attorney is retained to file a petition at the court in the county of residence of the incapacitated person.

Although an individual seeking guardianship for another may do so without the use of an attorney, the advice of legal counsel may be beneficial and helpful and especially where the alleged person with disabilities objects to guardianship or where complicated personal or financial issues are presented to the court. If proceeding without an attorney, the clerk of the court should be consulted to obtain copies of local court forms, and to learn about the scheduling of guardianship cases.

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Sometimes guardianships are pursued unnecessarily when a person needs help managing finances or personal care, and friends or family are unsure what to do. One or more alternatives may address the problem.

A representative payee is a person who is appointed to manage Social Security benefits on behalf of an individual. Requests for a representative payee should be directed to Social Security.

Social and health services may be arranged directly from providers or through case managers include: respite care, information and referral, adult day care, home health care, homemaker and personal care, home delivered meals, mental health services, day program and vocational services, tenant support and transportation.  Eligibility for publicly funded services may depend on income, age and type of disability.

Alternatives to Guardianship:

• Case/care Management
• Community Services
• Durable Power of Attorney
• Healthcare Power of Attorney
• Joint Tenancy
• Living Trusts
• Living Wills
• Money Management Services
• Representative Payeeships
• Respite Care & Other Services

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Temporary guardianship can be obtained quickly. The length of time required for the guardianship process when an emergency does not exist is about 60 days.

It is important to thoroughly investigate the case before filing it, because it cannot be withdrawn later without the court’s permission. There can be serious consequences for the petitioner and also for the petitioning attorney if the case is found to be frivolous.