This is part two of a series on guardianship. The introduction to the series can be viewed here.
How is a guardianship started?
Anyone who is interested in the well-being of an alleged incapacitated person’s (AIP) can petition the court for the appointment of a guardian of the person and/or estate. A guardianship petition contains allegations regarding the functional inability of the AIP to manage their financial and/or medical affairs. It must be filed in the Superior Court of the county of the AIP’s residence. The Court appoints a Guardian ad Litem (GAL) who meets with the AIP, investigates the allegations in the petition, interviews family members or other people who know the AIP and reviews relevant medical and financial information. The GAL prepares a written report with recommendations to the court. The report and recommendations address the degree of functional incapacity of the AIP and whether there are “less restrictive alternatives” to a guardianship. The report and recommendations also identify an appropriate guardian and the scope of authority of the guardian.
Who can petition?
As stated above, anyone interested in the well-being of the alleged incapacitated person may petition for guardianship. The petitioner may be a friend, a neighbor, a professional involved in the person’s care, or the Attorney General’s Office. There are other members or parties who may also want to be involved in petition, including:
- Family members
- A fiduciary with a duty to the person needing assistance
- A person who believes exploitation and/or abuse is occurring
- Adult Protective Services (DSHS)
- Represented by State Attorney General
Why seek a guardianship?
Guardianship may be needed because there is some form of mental disability, illness, or injury that causes incapacity either permanent or short term. An important point of this legal process is that an AIP has shown an inability to provide for their own care or to manage their affairs independently. Here are a few examples as to why one might seek guardianship.
- Financial mismanagement
- Financial abuse or exploitation
- Action or inaction by a person or entity with a duty of care for a vulnerable adult that leaves the person without the means or ability to obtain necessary food, clothing, shelter, or health care.
- Willful action or inaction that inflicts injury, unreasonable confinement, intimidation, or punishment on a vulnerable adult who is unable to express or demonstrate physical harm, pain, or mental anguish. The abuse is presumed to cause physical harm, pain, or mental anguish (includes sexual abuse, mental abuse, physical abuse, and exploitation).
- An act of forcing, compelling, or exerting undue influence over a vulnerable adult causing the vulnerable adult to act in a way that is inconsistent with relevant past behavior, or causing the vulnerable adult to perform services for the benefit of another.
Who can be a guardian?
A qualified guardian is appointed by the court as long as she or he is able to provide appropriate support and supervision of the financial and/or medical decisions for the incapacitated person. The guardian must be 18 years or older, be of sound mind, have no criminal convictions, and meet any necessary training and/or certification requirements. Often the petitioner and/or AIP have a preference for family members, as they tend to be most involved in the lives and well-being of the AIP. When a suitable family member or friend is not available, a Certified Professional Guardian may be appointed. Certified Professional Guardians are supervised by the courts as well as the Certified Professional Guardianship board.
Go to http://www.courts.wa.gov/programs_orgs/guardian for more information about this program.