Understanding Adult Guardianship and Conservatorship in Washington State

When an adult becomes unable to make safe or sound decisions, or to handle their financial affairs on their own, ideally those decisions would be managed by someone that adult already chose in a Durable Power of Attorney. A well-drafted Power of Attorney allows a trusted agent to step in immediately, avoiding court delays and preserving the individual’s preferences. (For more on how powers of attorney work in Washington, refer to The Essential Role of a Power of Attorney in Washington Estate Planning. Unfortunately, many adults do not execute a Power of Attorney, or do not have the capacity to execute one due to disability, requiring families to involve the courts through a guardianship and/or conservatorship.

What is a Guardianship/Conservatorship in Washington

Guardianships and conservatorships are legal processes by which a court appoints a person (called a “Guardian” or “Conservator”) to make decisions on behalf of another individual (called a “Protected Person”) who is unable to manage their personal and financial affairs themselves due to disability, illness, or incapacity. Guardians are appointed to make personal decisions on behalf of the protected person, such as health care decisions (e.g. treatment, medications, surgeries), living arrangements, and daily needs and medical decisions on behalf of the protected person, while Conservators manage financial and legal affairs, such as paying bills, filing taxes, and applying for benefits. When a guardianship or conservatorship is established, incapacitated persons may lose the right to:

• Vote
• Marry/divorce
• Enter into a contract
• File a lawsuit
• Manage money
• Possess a license to drive
• Buy, sell, own, mortgage, or lease property
• Consent to medical treatment
• Make decisions regarding social aspects of their life.

Since guardianship/conservatorship can limit a person’s ability to make decisions independently, it should only be pursued when less restrictive alternatives have either been tried and found ineffective or are not available.

How is a Guardianship or Conservatorship Established

The first step in pursuing a guardianship/conservatorship is to file a petition in the Superior Court of the county where the adult in need of protection resides (“AIP”). Although the process is most often initiated by family members or close friends of the AIP, the law allows for any interested party to request appointment of a guardian/conservator which can include facilities (such as hospitals, long term care homes, etc) and government agencies (Department of Social and Health Services). The specific parties entitled to notice of the petition may vary depending on the circumstances, but typically include:

• The AIP (must always receive notice)
• Their spouse or domestic partner
• Their adult children
• Parents
• Siblings
• Person responsible for the care of the AIP
• Other individuals the court determines should be notified

After a petition is filed, the Court will order a professional evaluation of the AIP and will appoint a Court Visitor (formerly referred to as a Guardian ad Litem) to investigate. A Court Visitor is a neutral third-party who interviews the person/entity filing the petition, family members, caregivers, medical providers, and the AIP (if possible), and prepares a report for the Court detailing whether a guardianship/conservatorship is necessary and, if so, who should serve in those roles. The Court relies heavily on the Court Visitor’s report in determining whether or not to appoint a guardian or conservator.

Once a guardian is appointed, they will need to file a plan with the Court that details how they will ensure the Protected Person’s everyday needs are met. If a conservator is appointed, that individual will need to provide an inventory to the Court of the Protected Person’s assets, propose a budget for the Protected Person, and detail how they will manage the Protected Person’s property and finances. Guardianships and conservatorships have ongoing reporting requirements and must update the Court on the status of the Protected Person’s physical and financial well-being on an annual, biennial, or triennial basis depending on what schedule the Court imposes. If there are substantial changes in the circumstances of the Protected Person (such as hospitalization or significant changes in their financial situation), such changes must be reported to the Court within thirty days, regardless of the reporting schedule.

What are the Rights of the Adult in Need of Protection

What are Less Restrictive Alternatives

Washington law favors less restrictive alternatives, meaning if the AIP’s needs can be met without a guardian or conservator being appointed, those alternatives should be pursued instead. Financial and health care powers of attorney are common less-restrictive alternatives to guardianships and conservatorships. Other options include supported decision-making agreements (SDMAs), which allow a person with disabilities to retain decision-making authority but work with a chosen supporter (or supporters) to understand choices and communicate their wishes. For conservatorship alternatives, a representative payee for Social Security (a person or organization appointed to manage federal benefit payments) can oversee income without full financial control, or a trust that allows assets to be managed by a trustee are useful options.

Protect Your Loved One’s Rights with the Help of an Adult Guardianship Attorney in Vancouver, Washington