What is Guardianship?
Guardianship is a legal relationship where the court appoints one person to make personal and financial decisions on behalf of a person whose ability to make decisions is compromised. The person who is appointed to make decisions is called a guardian and the person who is vulnerable is called an incapacitated person or ward. Prior to the appointment of a guardian, the vulnerable person is referred to as an alleged incapacitated person. Legal professionals and the courts refer to an alleged incapacitated person using the acronym “AIP.”
Guardianship & Fundamental Civil Rights:
The essential question in a guardianship is whether the alleged incapacitated person, or AIP, has the ability to make decisions around fundamental civil rights. These rights include: the right to marry, the right to vote, the right to drive, the right to enter into a contract, the right to transact in real estate, the right to draft a will, the right to appoint someone to make decisions on your behalf, the right to made medical decisions, the right to make decisions about one’s social life, and the right to decide who will provide care and support for oneself.
These rights are divided into two categories: rights of the person and rights of the estate.
- A right of the person is, for example, the right to vote or to marry.
- Rights of the estate include the right to draft a will or buy land.
The Court Process:
In Washington, the courts look for the least restrictive means by which an AIP may be protected. Stated plainly, the court will determine of some or all of the fundamental decision-making rights of the AIP need to be granted to a guardian. In making this determination, the court looks at the past actions of the AIP and the risk factors present in the AIP that may harm the AIP person or estate.
The court looks for a pattern of conduct by the AIP, to determine if that person is unable to make decisions for themselves. Examples of conduct that suggests that a guardianship is necessary to include: failing to pay bills, giving cash or other property to strangers, making health decisions against medical advice, or other behavior that is otherwise not in the best interest of the AIP.
The court will also consider the potential risk of an AIP in making decisions that are detrimental to their physical and financial well-being. To determine if an AIP is at risk of making poor decisions or is vulnerable, the court will consider medical, psychological, and behavioral characteristics of the AIP. The medical factors that the court will look for include, dementia, Alzheimer’s disease, developmental delay, cognitive deficiency, epilepsy, or other physical limitations. The court will also consider mental health conditions, such as: schizophrenia, schizoaffective disorders, depression, substance abuse, or psychosis.
After taking into account the past behavior of the AIP and the risk factors present in the AIP, the court will make a determination if appointing a guardian is an appropriate solution to protect the individual from harm. The court has broad discretion to appoint a guardian as a full guardian of the person and estate, or to appoint a guardian with limited decision making power. The goal of appointing a guardian is to protect an AIP from harm while maintaining the autonomy and dignity of the AIP.
Let Us Help You!
Our team at Navigate Law Group has the knowledge and skills necessary to help individuals and facilities to petition the court to appoint a guardian. Every situation is unique. For answers regarding if establishing guardianship is appropriate to protect your loved one, we invite you to reach out and schedule a consultation.
Our Services Include:
- Representing Parents of Special Needs Children
- Petitioning to appoint a Guardian
- Lay Guardian Representation for reporting and care plans
- Representing Alleged Incapacitated Persons or Respondents subject to Guardianship Petitions
- Serving as Guardian ad Litem
Frequently Asked Questions
Can you file for guardianship without a lawyer?
The short answer is that you do not need a lawyer to file for guardianship. There are a few people who serve as guardian of a loved one who fulfill their legal duties and obligations without the assistance of an attorney. Hiring an attorney does provide benefit to a person seeking to establish guardianship. An attorney who practices in guardianship law brings their legal expertise, working relationships with members of the guardianship community, and ability to process the necessary paperwork to the attorney client relationship. This allows you to focus on providing care and assistance to your loved one.
Can a guardian restrict visitation?
This depends on the terms of the order appointing guardianship. In Washington, a guardian’s ability to restrict access to a vulnerable person by third parties requires the order stating that the guardian has the right to make social decisions for the vulnerable person. It is more complicated in situations where divorced parents are raising a child with special needs who is about to turn 18. Occasionally, the court will order the guardian to follow a visitation subject to a visitation schedule outlined in a permanent parenting plan. In these situations, the court looks to the best interest of the vulnerable adult in determining if a visitation schedule should be temporarily extended past the vulnerable reaching the age of 18.
Are legal guardians financially responsible?
Legal guardians of adults are not financially responsible for incapacitated persons. However, legal guardians owe fiduciary duties to an incapacitated person. This means that a legal guardian must manage the resources of an incapacitated adult to adequately provide for the needs of the incapacitated adult. Further, the degree to which a guardian is responsible for finances depends on the terms of the order appointing guardian.
Can a legal guardian marry their ward?
If an incapacitated adult wants to get married, they can, if they retain that right in the order appointed guardian. If not, then a guardian may petition the court on behalf of the incapacitated adult to allow a marriage. This is a complicated scenario and the courts will examine the facts of each particular proposed marriage.
How much do Guardians get paid?/How do court-appointed guardians get paid?
Private Certified Professional Guardians charge differently depending on the facts of each individual case. If an incapacitated adult has sufficient resources, the guardian will be paid from the estate of the incapacitated person after court approval of fees. Guardians who take cases at public expense are paid a flat fee by the state per case.
How much does a legal guardianship cost?
Petitioning the court to establish a guardianship may cost anywhere in the range of $1000 to $5000. Also, a guardian is required to make regular reports to the court as to the status of the incapacitated person. The cost of these annual reports ranges from $1000- $5000.
How do you get guardianship over someone?
To establish a guardianship, a person must file a petition for guardianship of the alleged incapacitated person. The court will then appoint a Guardian ad Litem to make a report as to the condition of the alleged incapacitated person. If the alleged incapacitated person needs assistance, the Guardian ad Litem will make a recommendation to the court. The court must look to lesser restrictive means than a guardianship to adequately protect an alleged incapacitated person.
How long does it take to get guardianship?
In general, guardianships in Washington may be established in a few as 2 months. This depends on many factors including the ability of a Guardian ad LItem to make a report to the court, if the alleged incapacitated person contests the guardianship, and if the court receives a medical report from a licensed medical professional.
Who Cannot be a guardian?
Persons who have a criminal history, bankruptcies, breaches of fiduciary duties, legally incapacitated, or minors are generally legally unfit to serve as guardians.
Do you get money for being a guardian?
Certified Professional Guardians either charge hourly or on a flat fee basis for their services.
What court handles guardianship?
In Washington, the Superior Court for the county handles guardianship matters. In Clark County, the judges on the civil rotation hear guardianship matters. The court hears regular matters on Friday Afternoons at 1:30 on the Probate Docket. More complicated matters are sometimes heard in front of the regularly assigned judge. During COVID, the court conducts hearings via video conference.
Our Guardianship Attorney
Brian J. Grambow
Civil Litigation | Guardianship | Probate | Real Estate Law