What is guardianship? Guardianship is a legal relationship where the court gives one person (the guardian) the power to make personal and / or financial decisions for another (the incapacitated person or ward). A guardian may be appointed when the court determines that a person is a vulnerable person based on a pattern of conduct of not being unable to care for herself and / or her estate and is at risk of harm to her person and /or her estate. In Washington there is considerable flexibility in appointing a full or partial guardian.
When is a guardianship appropriate? Guardianship is appropriate when vulnerability or impaired judgment as demonstrated by a pattern of conduct poses a significant risk to a person's welfare. An evaluation by a court appointed guardian ad litem is necessary to establish the incapacity. Guardianship is sought when there are no other alternatives.
How can I become a guardian? A petition must be filed with the court requesting the appointment of a guardian. Then, the court appoints a guardian ad litem to conduct an investigation. The ward is served with notice of the petition. Notice and a copy of the petition are mailed to family members and care givers. After the guardian ad litem conducts her investigation, she prepares a report and circulates it to interested persons. Finally a hearing is held where a judge considers objections or concerns, decides whether a guardian should be appointed, who should be appointed, how much authority the guardian should have and whether a bond must be posted. This process usually takes 4-8 weeks.
How long does this appointment last? A guardianship appointment may last until the death of the ward or the guardian, until the ward is able to establish that she has capacity or until it is no longer necessary.
What authority does the guardian have? Unless limited by the court, the guardian has almost total control over the finances and the personal decisions of the ward. This includes deciding who will provide care for the ward, determining how the ward's funds will be spent, and making routine medical decisions for the ward. Unless the ward objects, the guardian makes decisions on where the ward will live. For some decisions, such as those involving extraordinary medical care, the administration of anti-psychotic drugs, or the sale of the ward's real estate, the guardian must seek the court's advance approval.
What does a guardianship cost? Fees, by law, for these matters must be reasonable based on the amount of time it takes to provide the services. It is hard to give general estimates for services that can vary greatly depending on the circumstances. Before considering guardianship we will explore other options that may be available. If guardianship is necessary, initiating a guardianship usually requires a nonrefundable retainer of $1,500, filing fee of $110 and guardian ad litem fees.
Who pays for guardianship? Usually the estate of the ward pays the expenses of a guardianship. However, when a new guardianship petition is filed, the petitioner generally must advance costs and estimated attorney fees. Once the court determines a guardian is necessary the court will also determine who should pay the costs of establishing the guardianship and may enter an award allowing fees to be paid or reimbursed from the ward's assets. In some cases the county will pay the filing fees, guardian ad litem fees and attorney fees if the assets of the ward are less than $3,000.
What are the responsibilities of the guardian? The guardian must account carefully for all of the ward's income and any expenditures made on his or her behalf. The guardian must make decisions in the best interest of the ward. The guardian first files an inventory listing the ward's assets and a personal care plan. Then each year [or three years in some cases] the guardian must file a report with the court detailing how income and expenses were used and updating the court on the ward's personal care plan. A final account must be filed when the guardianship is terminated.
Who pays for the annual reports? If the guardian chooses to have an attorney prepare the report, the cost will range between $350 and $1,500 depending on the completeness of the guardian's record keeping, the issues that arose during the reporting period and the amount of detail required due to the ward's resources and situation. If the guardian prepares the report and files it with the court on her own, there is usually no cost.
What are the alternatives to guardianship? There are several less restrictive and less costly alternatives to guardianship. These include the durable powers of attorney, representative payees, living trusts, and health care representatives. Each of these options may avoid or delay the need for a guardian. However, these documents need to be executed before the individual is incapable of doing so due to mental impairment, vulnerability or lack of capacity and must contain the authority that is needed.
Margaret Madison Phelan is an attorney licensed to practice law in the states of Washington and Oregon. Mrs. Phelan was admitted to the bar in 1986. Since 1992 her practice has focused on the long term care planning needs of seniors and persons with disabilities.
Mrs. Phelan is a member of the National Academy of Elder Law Attorneys and is a trustee of the Washington chapter of NAELA. Mrs. Phelan is past secretary of the Washington State Bar Elder Law Section, past Secretary of the Clark County Bar Association and has served on the Oregon State Bar Elder Law Section.
Phelan's practice includes pre-planning for long term care, crisis planning for long term care, Medicaid spend-down or transfer planning and the actual preparation of Medicaid applications. She also handles more traditional estate planning, guardianship, probate, trust administration and planning for persons with disabilities.
Margaret Madison Phelan P.S.
502 E McLoughlin Blvd
Vancouver WA 98663
360 696-2069
December 8, 2002
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