Clients often come to Reed Longyear Malnati & Ahrens, PLLC with questions about guardianship and what it means.  While a guardianship proceeding can be stressful and complicated, it can be mitigated with the help of an experienced guardianship attorney, as well as taking a proactive approach to gain an understanding of the process and the issue of incapacity.  Below are a few of the most frequently asked questions.

What is Guardianship?

Guardianship is established through a legal process situated in the law and in our system of due process.  One of the primary goals of this system is to ensure that only those people who are found to be legally incapacitated have guardians appointed to manage their affairs.  As such, the system of due process provides many safeguards, including the right to notice, the right to independent counsel, the right to be present in court, and the right to a jury or a trial to determine whether or not someone is incapacitated.  Incapacity is determined by a legal standard, not a medical condition or other criteria.  There is a presumption of capacity.  The legal burden is on the petitioner to show by clear, cogent, convincing evidence that the person is functionally incapacitated as to personal care decisions and/or management of their financial matters.

It’s important to remember the legal context when entering in to a guardianship proceeding.  The guardian’s relationship to the incapacitated person is a legal one.  They are appointed to act on the incapacitated person’s behalf according to the laws that Washington State has developed over several decades.  The guardian is not appointed to do as the person asks, nor are they selected to help, fix, or save the person from the lifestyle they have chosen for themselves.  Rather, the guardian must act in the incapacitated person’s best interest subject to court review and approval.

What happens to a person who is found determined to be “legally incapacitated?”

There are many legal consequences that result from guardianship.  Most importantly (and conflicting) are the potential rights the incapacitated person may lose as a result of this legal process, as outlined in RCW 11.88.030.

Possible loss of rights:

• to marry, divorce, or enter into or end a state registered domestic partnership;
• to vote or hold an elected office;
• to enter into a contract or make or revoke
• to appoint someone to act on your behalf;
• to sue and be sued other than through a guardian;
• to buy, sell, own, mortgage, or lease property;
• to consent to or refuse medical treatment;
• to decide who shall provide care and assistance;
• to make decisions regarding social aspects of your life.

Are all of these rights taken away?  Can an incapacitated person make decisions for themselves?

It must be clarified that not all incapacitated persons’ have all of these rights restricted, and that even if they do, the rights are not lost so much as their ability to exercise these rights has already been limited by their cognitive condition and/or ability to make independent decisions.  The guardianship process is intended to help them be able to exercise rights that they would otherwise not have sufficient capacity to act upon.  The distinction is that the court has determined that they are not able to manage their affairs or make decisions.   This is an important legal concept and an important legal and ethical distinction.

It may help to look at this rights issue from a different perspective:

The guardian can actually help the person exercise their rights – to live in the least restrictive environment, to obtain quality care and medical services from those professionals that serve them, to get fair compensation for the sale of their homes or personal property, to get competent management of their assets, to secure those government benefits to which they are entitled, and to advocate for anything else they wish to have in their life and for those ancillary services that would enhance the quality of their life.

If you have specific questions about a guardianship or the process to appoint a guardian or related issues please contact us.

Continue on to Guardianship Pt. 2: How to Start a Guardianship