Note: This information is intended to give an overview of guardianship in Washington State. It is for educational purposes only and is not a substitute for legal advice. For advice on making legal decisions, please talk to an attorney. The law will change in 2022. This information is current through 2021 only.
“Guardianship is a legal process through which an individual or business is given the legal authority by the court to make decisions for another person.” —Washington Courts, Guardianship 101 Training
Many people think that guardianship is the best way to help adults with intellectual and/or developmental disabilities make important decisions. The truth is, guardianship is often not necessary. In fact, Washington state’s guardianship law requires considering alternatives first. Consider these situations:
Reasons to seek guardianship:
- A child with a disability who is turning 18
- A person who is being abused, neglected or exploited
- A person who has dementia and can’t live independently
- A person who cannot manage his money to meet his needs
- A person who cannot make health care decisions
In and of themselves, such situations are not reasons for guardianship. State law requires considering alternatives to guardianship first. If problems arise, respectful interventions by friends and family are often enough to help the individual solve many issues that pose a risk to health, safety, and financial stability.
When petitioning the court to become a guardian, the category and scope of guardianship must be identified.
Categories of Guardianship:
- Guardian of the Estate
- Guardian of the Person
- Guardian of the Person and Estate
Guardian of the Estate Responsibilities:
Keep detailed records of the person’s property and finances. Record everything the person owns, pays for and receives. The guardian must file an inventory with the court of all the person’s possessions and assets within three months of appointment, and an annual accounting of income and expenses. These accountings must balance. They must be supported by records and receipts.
Guardian of the Person Responsibilities:
Make sure the person’s physical, mental and emotional needs, and any need for assistance in activities of daily living, are being assessed and addressed. A Guardian of the Person is responsible for putting a plan in place to meet these needs, and must file that care plan (identifying needs and explaining how they will be met) with the court within three months of being appointed. Additional reports are required annually.
Scope of Guardianship
Grants the authority to make specific decisions identified in a court order and may be time-limited. Guardianships are supposed to be no broader than necessary to meet the needs resulting from a person’s incapacity. Courts can appoint limited guardians for people who are capable of caring for themselves, or arranging for their care in some ways but not in others.
[Note: Incapacitation is not a statement about the individual’s full range of abilities. For example, a person may not be able to manage his money, but he may have the ability to understand what a Power of Attorney is and, therefore, avoid guardianship by signing a Power of Attorney.]
Grants the authority to make all make decisions provided under the law. Full guardianship denies a person significant rights, which may include the right to vote, marry, get a driver’s license, enter into contracts, or decide who will provide care. It should be entered into only if alternatives to guardianship, or limited guardianship, are not sufficient.
Steps to Guardianship
- Training for Non-Professional (Lay) Guardians
Before a family member or other non-professional can petition (file court papers to ask) the court to be a guardian, s/he must complete a free online training. It covers guardianship duties and responsibilities, forms and timelines. The training is easy. You can do it in one sitting (in about two hours) or in several sessions, moving at your own pace. If you choose to petition for guardianship after doing the training, keep the declaration of completion you got from the training to show the court.
- Petitioning the Court
Anyone seeking guardianship must file a petition with the Superior Court. The petition asks the court to determine that the person identified in the petition is incapacitated, determine what type of guardianship is needed and appropriate, and appoint an appropriate guardian. You must give notice of the guardianship petition to the person identified in the petition and other interested parties. Find forms for petitioning for guardianship online.
- The Court Appoints a Guardian Ad Litem
Once a petition to court is made, the court appoints a guardian ad litem to investigate. The guardian ad litem must recommend to the court if guardianship is appropriate, who should be guardian, or if other less restrictive alternatives are available.
- A Hearing is Held
At this hearing, a family member or others may contest (fight) the request for guardianship. If the court appoints the petitioner as guardian, the petitioner gets letters of guardianship.
- Letters of Guardianship
This is the formal document allowing the guardian to act on behalf of the person. It also details any restrictions placed on the guardianship.
Serving as a guardian of the person and/or the estate is a lot of work. You must keep thorough records to support everything you do on behalf of the person with receipts or other records. Reports are due at the following times:
There are generally three types of reporting:
- Within 90 days of being appointed as guardian
- Each year at least one month before your Letters of Guardianship will expire
- Within 30 days of certain events happening
It is important to file your reports on time. If you do not file your reports on time, you could face court fines, you might need to appear at a hearing, and the court may remove you as guardian. Reporting procedures vary by county. Some courts may require you to appear at a review hearing. Be sure you find out your county’s specific reporting requirements.
Lay Guardian Training and Reporting
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Guardianship Series: Part 1
What is Guardianship?
The first segment of this three-part podcast series focuses on the different types of guardianship.
Posted: September 7, 2009
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Guardianship Series: Part 2
Alternatives to Guardianship
This podcast focuses on the alternatives to guardianship that individuals with developmental disabilities and their families may want to consider instead of guardianship.
Posted: September 23, 2009
David Lord of Disability Rights Washington
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This podcast focuses on guardianship and the rights of the individual.
Posted: October 14, 2009