Guardianship may be the best alternative for an incapacitated adult…
Or it might not be. 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 .” Guardianship takes away most or all personal rights. That is why it is taken so seriously and only granted by the courts when there are no other appropriate options. We help advise you on alternatives to guardianship and, if necessary or if the best option for an incapacitated person, guide you through the guardianship process. In all cases, we adhere to Washington court guidelines, in which it is stated that “liberty and autonomy should be restricted through the guardianship process only to the minimum extent necessary to adequately provide for their own health or safety, or to adequately manage their financial affairs.”
Who may need a Guardian?
An elderly incapacitated individual or an incapacitated adult (or a minor child) may need a guardian. Common reasons for elderly or adult incapacitation include mental deterioration (such as dementia or Alzheimer’s), physical incapacity, developmental disability, or mental illness. The court holds a hearing to determine whether a person is incapacitated, based on facts and evidence. If the court finds that person to be legally incapacitated, then they may appoint a guardian. Specifically, the court looks at whether the person is:
- A child with a cognitive disability who is turning 18 and cannot manage their personal and financial affairs.
- A person who cannot defend him or herself against abuse, neglect, or exploitation.
- A person who has dementia and cannot live independently.
- A person who cannot manage their money to meet their needs.
- A person who cannot make health care decisions.
What are the Guardian’s duties?
In a partial (or limited) guardianship, the guardian makes decisions on only those matters specifically ordered by the court. Anything not specified is left to the decision of the incapacitated person. For example, the guardian may have the authority over finances but not health care choices. In that case, they are the guardian of the estate, meaning they have decision-making authority over financial affairs and property.
A guardian who has authority to make decisions regarding the physical, mental, and emotional needs of a person is a guardian of the person . A plenary (or full) guardianship is one in which the guardian is the decision-maker in all matters, both personal and fiduciary.
It is the guardian’s duty to see to the best interests of the ward (the incapacitated person), to ensure their health, safety, and well-being, to protect them from abuse, to act with integrity and honesty regarding finances, to avoid conflicts of interest or self-dealing, to communicate their decisions with the ward, and to report regularly to the court.
What steps are required to establish legal guardianship?
A person who is over the age of 18, who is of sound mind and has not been convicted of a serious crime, and who meets court-required certification, can petition the court to be the guardian of an incapacitated person. Often, it is a person applying to become a legal guardian, but it may also be an agency. Banks can become guardians of the estate, but not of the person.
The guardian must be appointed (approved) by the courts. The process for appointment includes:
- Within five days of filing the petition, the incapacitated person must be served with a guardianship proceeding notice.
- A hearing will be held, generally within 45 to 60 days of service of notice. The person alleged to be incapacitated can make objections at this hearing and is entitled to legal representation.
- Before the hearing, the court will appoint a guardian ad litem (GAL) to investigate the need for a guardianship. The gAL makes recommendations to the court based on medical and psychological evaluation they have obtained.
- The GAL’s final report may recommend dismissal of the petition or the appointment of a limited or plenary guardianship.
Helping you find compassionate, effective guardianship solutions
To learn more about guardianship and potential options, such as community services, case management, or other appropriate alternatives, please call us at (509) 994-1599 or contact us online to schedule a consultation. We can discuss your situation and help find a course that is best for all involved. We serve clients throughout Spokane County and surrounding areas.