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How Is a Guardianship Formed?

Since guardianship restricts the civil liberties and autonomy of individuals, extensive procedural safeguards exist to insure that only those persons who need guardianship receive such help, and that the help persons with guardianships receive is the least restrictive assistance possible.  RCW 11.88.005.

The superior court of each Washington county has authority to appoint guardians for incapacitated persons who prove a significant risk to themselves of personal or financial harm by a demonstrated ability to provide for their own nutrition, health care, housing, physical safety, or financial management.  A minor may also be determined to be an incapacitated person.  The decision whether a guardianship is warranted is not a medical decision, but a legal decision for the court.  RCW 11.88.010.

The court may impose full or limited guardianship as to the person or estate or both of the incapacitated person. (In this summary, “guardianship” means full guardianship or limited guardianship.)  Venue for guardianship actions lies in the county where the incapacitated person is domiciled, under most circumstances.  RCW 11.88.010.

If the incapacitated person has nominated a person as his guardian in a durable power of attorney, the court is obligated to appoint the person nominated as guardian, if a guardianship is imposed, except for good cause or disqualification.  RCW 11.88.010.

Guardians must be over eighteen years of age, of sound mind, not convicted of a felony or misdemeanor involving moral turpitude, a resident of Washington or a non-resident who has appointed a resident agent to accept service for him, or a person the court finds unsuitable.  Corporations must be specially qualified as guardians to be appointed.  RCW 11.88.020.

Any person or entity may ask the court to impose a guardianship with respect to another person. The petition must include, among other things, the identity of the alleged incapacitated person (“AIP”), the nature of his incapacity, the approximate value of his property and its description, the name and address of the person nominated as guardian, the reason guardianship is being pursued, a description of the alternate arrangements previously attempted with respect to the AIP and why those arrangement are inadequate, the nature and degree of the alleged incapacity, the nature of the limitation of rights requested and the term of those limitations, and the qualifications of any person proposed as guardian for the AIP.  The filing fee may be waived for AIPs of very limited means.  After filing of the petition for guardianship, those papers must be personally served on the AIP within five days.  The form of the notice is specified in the statute.  Petitions for guardianship must be heard within sixty days, except for good cause shown.  RCW 11.88.030.

The court may order mediation among the contesting parties, if mediation may resolve the disputes.  RCW 11.88.090(2).

In all guardianship petitions, except those where the sole basis for the petition is the minority of the AIP, the court must appoint a guardian ad litem (“GAL”) to report to the court the results of the GAL’s independent investigation of the merits of the guardianship petition’s allegations.  RCW 11.88.090.  GALs must be qualified by special training.  Courts maintain registries of persons qualified to serve as GALs.  GALs meet with the AIP to explain the proceedings, get written or oral reports from qualified professionals, meet with guardian nominees, speak with all relatives, friends, and other persons with significant, continuing interest in the welfare of the AIP, and investigate alternate arrangements that are less restrictive than guardianship.  RCW 11.88.090(5).  The GAL provides the court with a written report containing the GAL’s findings and recommendations within forty-five days of appointment, and not less than fifteen days before any final hearing.  This report must be served on all interested parties, who may respond to the GAL report.  The GAL may get extensions of time to report when reasonably necessary.  A GAL may act on behalf of the AIP in emergent circumstances, and may bring actions if the AIP is being abused, neglected, abandoned, or exploited.  RCW 11.88.090.  No GAL may communicate with the judge in a guardianship matter outside of the usual hearings, on pain of removal.  RCW 11.88.093.  GAL fees are paid by court order.  RCW 11.88.097.

At any hearing in the guardianship matter, the court may consider whether any person who makes decisions regarding the AIP has breached a statutory or fiduciary duty.  RCW 11.88.090(13).
 
In trial of the guardianship matter, the AIP has a right to counsel, at public expense if he cannot afford counsel, hired at least three weeks before the final hearing, whose duty it is to advocate for the client.  The AIP’s attorney shall not substitute counsel’s own judgment for that of the client on the subject of what may be in the client’s best interests.  The role of AIP’s attorney differs from that of GAL.  The GAL represents the AIP’s best interest.  The attorney for the AIP represents the AIP’s expressed preferences.  RCW 11.88.045(1)(c).  The AIP is entitled to testify in his own behalf, and to demand a jury trial.  A heightened level of proof is required:  clear, cogent, and convincing evidence.  RCW 11.88.045.

In deciding the guardianship matter, the court must decide based on the capacities and needs of the AIP, and not on any agreement among the parties.  The required decisions for a guardianship order are specified at RCW 11.88.095. 
Guardians serve only after making an oath and filing bond (except for very small estates).  RCW 11.88.100.  Exceptions to the bond requirement are noted at RCW 11.88.105, 11.88.107.  The guardian must designate a standby guardian, should the guardian be unable to fulfill his obligations.  RCW 11.88.125.  The clerk of the court issues Letters of Guardianship to an appointed guardian or standby guardian.  11.88.125.

Guardianships may be modified or terminated, when that action is in the best interest of the incapacitated person.  Guardians may be replaced.  RCW 11.88.120.  The court may transfer jurisdiction and venue to another county when the court deems that appropriate.  RCW 11.88.130. 

Guardianships terminate upon the majority of a minor not otherwise incapacitated (by declaration of completion), by court order of capacity, by death of the incapacitated person, by expiration of a limited guardianship’s term.  Upon termination, the guardian must account to the court for the incapacitated person’s assets and make a personal care status report to the court.  RCW 11.88.140.

After an incapacitated person’s death, the guardian may pay the costs of disposing the decedent’s remains from the guardianship estate.  The guardian may continue administering the deceased incapacitated person’s estate for forty days after death, or until a personal representative is appointed.  RCW 11.88.150.  A guardian may become by the personal representative of the deceased incapacitated person by petitioning the court for letters of administration.  RCW 11.88.150. 

At RCW 11.90, Washington has adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, which provides rules for resolving conflicts among courts in various jurisdictions acting on behalf of the AIP.  The AIP’s home state is the state where he was physically present for the six months preceding the petition for guardianship or a protective order.  RCW 11.90.200 (1)(b).

Brad Lancaster works as a Seattle divorce attorney, and Seattle probate attorney, and Seattle elder law attorney, serving King County and Snohomish County, including Seattle, Shoreline, Lake Forest Park, Edmonds, Woodway, Lynnwood, Mountlake Terrace, Alderwood, Brier, Kenmore, Woodinville, Mukilteo, Mill Creek, and Everett.  Brad provides collaborative solutions to human conflict.

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