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
Our Guardianship Attorney
Brian J. Grambow
Civil Litigation | Guardianship | Probate | Real Estate Law