ANSWERS TO COMMON QUESTIONS ABOUT GUARDIANSHIP

Tom O'Brien

Revised 2/27/92

The basic premise of guardianship is that a person lacking the ability to assert some or all of her rights is benefited by the appointment of some one else to assert those rights on her behalf. Historically, guardianships were invented to assure that the lands and business dealings of people with infirmities were appropriately managed. It is necessary to have a reliable yes or no answer to questions involving legal technicalities. If the capacity of a person to understand and consent to an agreement is questionable, the agreement itself is questionable as well.

If a person does not have the capacity to exercise a right, the person is not benefitted by having the right. The delegation of exercise of individual rights is a means of assuring such exercise. As an example, most of the deinstitutionalization lawsuits that were undertaken in the 60's and 70's were filed by guardians acting in the names of specific residents of institutions. Our legal and social systems are based on an every-man-for-himself brand of individualism that assures only minimal protection to those who do not actively assert their rights and prerogatives. This outlook has become more pronounced in recent years with the loss of social consensus as to the way people without power should be treated. In keeping with the recent history of gratuitous disregard of the rights of people with handicaps, guardianship is widely considered as a threat to autonomy. In theory and when thoughtfully practiced, however, the opposite should be the case.

There are three branches of government: legislative, executive and judicial. Most of us are accustomed to working with the various departments, divisions, sections, offices and workers in the bureaucracy that is the executive branch. DSHS for example. There is no Department of Guardianship. Part of the aversion people have to guardianship is that it is a creation of the judicial branch, which most people rightly try to avoid. The processes and procedures of this branch of government are arcane and confusing. Access to the system is obtained through an attorney, who has specialized knowledge of the forms, folkways and mores of the system.

There are two sets of rules that govern guardianship matters. The most important is the guardianship statute, RCW 11.88 and RCW 11.92. Public libraries have current copies of state laws for those interested in reading up. The second set of rules are the practices and procedures of filing documents, scheduling hearings, giving notice and the multitude of details that go into even simple matters that are brought to court. It is important to note that while a guardianship can have a large role in the life of an individual, from the nuts and bolts aspect it is a very simple legal procedure, but one that a non-attorney cannot expect to master.

Guardianship is a legal proceeding in which a court determines that someone is unable to manage his or her personal or financial affairs. Upon making this determination the court delegates a person called a guardian to attend to the needs of the ward, and the court supervises the activities of the guardian.

Yes. The law distinguishes between guardianship of the person and of the estate. Guardianship of the person affects decisions about medical matters, living arrangements, consent to habilitation plans and comparable matters. Guardianship of the estate affects the control of a persons money and other possessions.

In addition the law provides that any guardianship can be limited.

These different limitations can be combined in a number of ways: a person may have a full guardian of the estate and a limited guardian of the person; A guardian of the person, but no guardian of the estate; and so on. There are eight possibilities, including no guardian at all.

When a person has a mental or physical condition which affects her ability to understand her circumstances, make decisions about her life or advocate for herself with medical or service bureaucracies. In our competitive and individualistic society, the need for advocacy is the most common basis of a guardianship.

When a person has a significant amount of money and is unable to exercise reasonable judgement in its control. A person with a small bank account and whose only income is, say, Social Security often will not need a guardian of the estate. A person who accepts needed assistance in managing a small set of assets, or a person who has a representative payee through Social Security is not usually in need of further protection. A person with significant amounts of money or property and poor judgement, and who thus risks mismanaging funds or being defrauded of their funds may need a guardian of the estate.

Washington law recognizes the diversity of people having disabilities and the fact that there are degrees of ability to exercise rights. People who have some ability to manage their affairs, but remain in need of assistance can have a limited guardianship tailored to their specific needs. This is best explained by way of example:

Al is 30 years old and is affected by Fetal Alcohol Syndrome. He works for the city engineering department and is accepting of help in managing his regular income and expenses. A number of times he has received junk mail offering credit cards, gotten the cards and run up big bills he is unable to pay. A limited guardian was appointed with authority to limit his use of credit. The guardian can now terminate credit accounts. For some reason, the very existence of this guardianship is sufficient to dissuade Al from getting more cards.

Carolyn is a 50 year old woman living in tenant support. She has a treatable form of cancer that requires decisions that ordinarily require considerable thought. While her regular physician has been satisfied with Carolyn's ability to manage her own care until now, the oncologist refuses to accept her consent to treatment. A limited guardian is appointed and given authority to make final decisions with a requirement that she first discuss the matter with Carolyn.

WARNING! There is popular sentiment that all guardianship should be limited guardianships. This is not reasonable. The authority given to a guardian should be a reflection of the ability of the ward to function and make decisions in the community; not of our ideological preference for stressing strengths rather than weaknesses.

Any interested person can initiate a guardianship. This is done by going to an attorney and providing some basic information. The attorney then prepares some legal documents, goes to the court house, has the court clerk open a court file, and has a brief meeting with a judge. At the end of this process the judge has appointed a guardian ad litem and the lawyer has scheduled a hearing on the matter.

The chief legal document the lawyer prepares is a "Petition for Appointment of Guardian". This document sets out the name, address, nature of incapacity and other information about the "alleged incapacitated person", as the proposed ward is called. The petition also formally asks the court to appoint someone as guardian.

Usually a family member or some other person who wishes to become guardian is the person who signs the petition. It is important to note, however, that anyone at all can sign a petition initiating the legal process of guardianship. The idea here is that it is in the public interest that people in need of assistance be identified, so any person who cares to may initiate or otherwise become involved in guardianship proceedings.

The person signing the petition can seek the appointment of another person as guardian. Technically, it is not even necessary to nominate the person to act as guardian. In practice, however, this is appropriate in few situations.

No one has an automatic right to be guardian. Any state resident the age of 18 not of "unsound mind" or convicted of a felony whom the court deems to be appropriate can become a guardian. There is an informal presumption in favor of family members. Family are the most common people who seek appointment as guardian. In cases in which there is unresolvable conflict among family members or when realistic concerns about the intentions or abilities of the proposed guardian are in question, the court often considers appointment of a "neutral" third party.

Ad litem is Latin for "for the suit", as in lawsuit. The guardian ad litem is charged with the duty of protecting the best interests of the proposed ward.

The guardian ad litem meets with the proposed ward, provides specific information about rights and is charged with reporting the response of the proposed ward to the court. The rights of proposed wards are: to be represented by an attorney, to contest the petition, to be present at the hearing and to have a trial by jury. If the proposed ward objects to the guardianship and indicates a wish to contest the matter, the guardian ad litem should, and usually does, arrange for the appointment of an attorney. In practice, this is a rare occurrence.

The guardian ad litem also obtains documentation of the proposed ward's disability. By law, this must be in the form of a medical report, usually just a letter, signed by a physician. Documentation from other sources is, however, relevant to the work of the guardian ad litem. The guardian ad litem also interviews the proposed guardian. Please note that in many guardianships, getting the physician to prepare an adequate medical report is the biggest problem of the whole exercise; not because they are difficult or complicated, but because doctors seem to have a reflexive tendency to avoid legal matters, however simple.

The guardian ad litem then writes a report summarizing the investigation. The guardian ad litem recommends for or against the appointment of a guardian, whether there should be limits on the guardians authority and who ought to serve as guardian.

WARNING! Many problems that arise in guardianships are the result of inadequate work by the guardian ad litem. Guardians ad litem are almost always attorneys. They seldom have much genuine expertise in human services. The most common mistake is failure to compare the needs of the proposed ward with the qualifications of the proposed guardian. The second most common mistake is to mistake a physician's diagnosis for an understanding of the condition of the person. From the standpoint of a service provider, it is very, very important to identify strengths of the proposed ward and potential problems with the proposed guardian. SERVICE PROVIDERS HAVE PERMISSION TO DO THIS. Indeed, they probably have an obligation to do this. Whatever their level of expertise, most guardians ad litem want to do well and will pay attention.

Most hearings on guardianship petitions are short. People tend to be keyed up before the hearing and a little disappointed afterwards. The hearings occur in the county court house in a designated court room. The proposed guardian, the attorney and the guardian ad litem will be there. It is not necessary for the proposed ward to be there; the guardian ad litem may waive the presence of the proposed ward. The proposed ward should be there, however, unless there is a good reason otherwise. Also in the court room will be a lot of other lawyers and their clients who are there for short hearings on uncontested divorces, wills, adoptions or similar matters. The clerk calls the name of the proposed ward and the participants approach the judge. The attorney makes a brief presentation, as does the guardian ad litem. The judge often asks the proposed ward if s/he understands and agrees. Contrary to common belief, most of the time the proposed ward is in agreement. The judge then signs, but often does not read, an "Order Appointing Guardian" and the hearing is over. Elapsed time is often less than five minutes.

A good rule of thumb is that a simple, straightforward problem free guardianship will be ordered about 30 days after a person goes to an experienced attorney. By law, the hearing cannot be sooner than 10 days after the proposed ward is given notice of the petition and hearing date, and not less than 60 days after the filing of the petition. The notice period can be reduced to 3 days for good cause, and the hearing can be continued past 60 days for cause.

Guardianship is not the best way to deal with emergencies.

If the proposed ward has significant assets the guardian ad litem fee and attorney fees are ordered paid by the ward. If the proposed ward is indigent, the guardian ad litem fee is paid by the court. If an indigent person wishes to oppose a guardianship, his or her attorney's fees are paid by the county.

There is no source of payment for the attorney who starts the guardianship. For people who are indigent, this cost is usually paid by the petitioner.

WARNING! The fees charged by different attorneys for the same work can vary considerably. In choosing an attorney it is best to look for someone with significant experience in guardianship work. Having done one or two guardianships is usually sufficient experience for a simple matter. For any case that may be contested or otherwise difficult, well seasoned counsel should be sought. One way to find a good attorney is to ask an attorney. Calling an attorney you know who does not do guardianship work and asking for a referral is perfectly acceptable. Like any other professional, attorneys like doing favors of this kind for one another, tend to know who is competent in specialized fields and know whose fees are reasonable. If you do this, be clear at the outset of the conversation that you are looking for a referral. Another good source is the pool of guardians ad litem. Most guardians ad litem are attorneys, and a person who gets a lot of GAL appointments gains valuable experience.

When a guardian is appointed, s\he fills out a form naming a person to act as guardian if the appointed guardian is unavailable or incapacitated. The standby guardian can give medical consent in this situation, and technically can do all other things the guardian is authorized to do for a period of thirty days from the incapacitation of the guardian. In practice, the exercise of authority by the standby is rare, and to be avoided. When a guardian dies or becomes incapacitated, the standby is, in effect, the guardian's nominee as successor guardian.

Most people who need guardians have impairments which render them to some degree dependant on the help of others. Guardians should help to identify and obtain this help through advocacy and the prudent use of financial resources.

A guardian of the person is supposed to assure that medical and other personal needs of the ward are met. This can mean many different things, depending on the circumstances of the ward. A guardian of the person is not obligated to personally house, train or care for the ward, but to assure that the resources available to the ward are used in his best interests. A guardian can obtain and divulge otherwise confidential information, participate in care conferences and advocate for the ward. Consent to medical treatment must be provided by the guardian. Most state sponsored support services also require the consent of the guardian to care or habilitation plans. This consent is often given informally.

Similarly, a guardian of the estate is supposed to manage the assets of the ward in the wards best interests to accomplish the meeting of the needs of the ward. The guardian of the estate is often bonded if the estate assets are over about $10,000.

Bond is essentially rip-off insurance sold by a bonding company for the benefit of the ward. If it is discovered that a bonded guardian has purposely misused funds for the guardians personal advantage, the bonding company will pay the claim against the guardian, and then pursue the guardian for reimbursement. The costs of the bond are typically paid by the ward. An alternative to a bond is to block accounts. Banks can set up accounts such that an order of the court is required to withdraw funds. Funds that are unlikely to be required for the next year or so can be put in such accounts, and a receipt signed by the bank filed in the court file.

By looking at the order. As indicated in the glossary, there are two documents that prove the existence and nature of a guardianship: Letters of Guardianship and the Order Appointing Guardian. A person wanting to know the limits of a guardianship must look at the order.

No. The guardianship statute very clearly prevents guardians from authorizing involuntary mental health treatment or involuntary mental health medications. In effect, guardianship has no bearing on mental health services unless the ward agrees to the services.

The statute also prohibits involuntary residential placement of any ward. In general there is very little that a guardian can do to coerce medical or personal decisions. However, most people who have guardians are aware that the guardian has authority and defers to the wishes of the guardian.

Many guardians have over-expansive notions of what amount of control they may exercise. For example, providers of residential service to people with developmental disabilities sometime complain of guardians who seek to dictate bed times, recreational activities, friends or other minute details of life. There are two responses to this sort of attitude. First, the guardian has no authority to dictate the rules or requirements of service organizations. If it is the policy of a group home that there are no set bedtimes, the guardian has no authority to dictate another policy to the homes employees.

Second, guardians have no personal power. They are appointed by the court, subject to the court's orders and serve at the pleasure of the court. They are literally officers of the court. Degrees of personal control that would strike the average person as excessive would so strike most judges as well.

The fact that a guardian is not a pleasant person, or is demanding of professionals is not necessarily a disqualification. The important consideration is whether the best interests of the ward are being served. Many advocates find themselves having to be persistent and demanding in order to get the needs of the ward addressed. It is best that this be done in a way that is pleasant in an interpersonal sense, but this is not a skill everyone has, and is not always possible.

Technically, the court's interest in a person does not end at the appointment of the guardian. The guardian is a delegee of the court, implementing the orders of the court and subject to the court's continuing jurisdiction and supervision.

Guardians of the estate are required to submit an inventory of the assets of the estate within 90 days of appointment. All guardians are supposed to file a report to the court either annually or at intervals up to three years, depending on the requirements imposed by the court. Many guardians fail to make timely reports, and most courts are lax in supervising guardianships when no significant amounts of money are involved.

Anyone. You. All of the provisions for hearings, guardians ad litem and so on are intended to identify and resolve possible problems with the creation of the guardianship or with the person identified as guardian. These intentions are only frustrated when people with relevant information do not share that information. Contrary to common belief most lawyers do not enjoy conflict, and there are enormous incentives to resolving problems in informal ways. This is particularly so in ordinarily uncontested matters like guardianship.

Tell the guardian ad litem. One of the real roles of the guardian ad litem is to try to mediate disputes of this kind in a low key way. Usually, the guardian ad litem will seriously consider your concerns. Guardian's ad litem are usually willing to be educated about a particular condition or about how to identify abilities of a person. Such information can convince the GAL to recommend limits. It is fairly rare that a guardianship is sought for someone who is completely competent. A person who needs help to advance his interests in avoiding guardianship probably has some level of impairment, but limits to the guardianship can be a very good idea. If the issue is more the appropriateness of proposed guardian than the competence of the proposed ward, then the focus should be on the identity of the guardian and not the need for a guardian.

Tell the guardian ad litem. It is best that in identifying concerns, you be as specific and factual as possible. Your personal opinion of the individual seeking guardianship is less persuasive than specific facts. It is suggested that you sit down and list out observations including, if possible, dates, actions of the person, the effects of the action, who else observed this and so on. This list is not so much something to write up and present as much as an aid for you to clarify your thinking. If all you have to offer is that you have a bad feeling about the proposed guardian, that also is relevant. If the proposed ward just doesn't seem to relate well to the proposed guardian, this is meaningful, especially if there is another well suited person to act as guardian.

Tell the guardian ad litem that you think the proposed ward needs to be represented by an attorney, and that you plan to attend the hearing to make this point. The proposed ward has a right to an attorney, at county expense if necessary. Unless the proposed ward is unable to express reservations about the guardian, the GAL ought to do this. A person who is not expressing herself, or has no ability to understand what is happening will not be especially benefitted by representation. In this case seek representation yourself by an attorney if at all possible. If your concerns are sufficiently grave, and there is an estate, the court may order the attorney fee paid by the ward. If you just plain do not want to pay an attorney, plan to go to the hearing and speak up. Let the GAL know that you plan to do this. Lawyers and judges are in the business of managing reasonably expressed disagreements, and you should try not to be intimidated about speaking your mind.

It is possible to initiate a review of the activities of the guardian at any time. If there is reason to think that a guardian is misusing funds or is failing to assure that the needs of the ward are addressed, there are a number of actions that can be taken to investigate and address the concerns. It is best to secure the assistance of an attorney to do this. Usually, the attorney will either call the guardian's attorney and try to effect a resolution. If this does not work, any number of formal actions can happen, including a petition for removal of a guardian or petition for appointment of a new guardian ad litem to review the matter.

RCW 11.88.120 provides a way for interested people who do not wish to pay for an attorney to direct the courts attention to potential problems. In essence, it directs the court how to respond to a letter or other complaint from an interested but unrepresented person. To access this process, read the statute and then write a letter addressed to the presiding judge of your county stating the cause number, the names of guardian and ward, and the information you think the court should have. Reference RCW 11.88.120. at this writing, this is a brand new process, and yours may well be the first use of this law the court has experienced.

The court file is in the county courthouse, in the office of the Court Clerk. It can be located using just the name of the ward. It is best to have the cause number, an identifying number on all legal documents relating to the any specific guardianship matter.

Absolutely. Much of the verbiage in legal documents, such as the phrase "An Incapacitated Person" seems unnecessary and confusing. The practice of using form documents saves legal expenses of doing documents from scratch every time. Most words ordinarily seen in legal documents are in the dictionary, often the second or third definition, and are used in everyday English. The most difficult aspect of reading legal documents is the unfortunate habit of most attorneys of writing very long sentences, to the point that it is difficult to keep track of the subject, object and meaning. A little mental redrafting of the wording and use of a dictionary will usually get a lay person over the rough spots. In talking with legal professionals, as with users of other forms of jargon, it is important to stop and ask when unfamiliar terms are used. Again, reference to a dictionary is advised.

The layout of legal documents is very logical. At the top, the county and the court of jurisdiction is identified, eg, "In The Superior Court for the County of Skamania." The text in the upper left part of the first page gives the type of case and the names of the people involved, eg, "In The Matter of the Guardianship of Joe Blow". The text in the upper right part of the first page gives the cause number that is on every document filed in the matter, and gives the purpose of the particular document being submitted, eg, "Petition for Guardianship". The purpose of the document is also given at the bottom of each page of the document. People tend to take a cursory look at these things and conclude that they are just gobbledegook. Not so. If you start at the top and read every word, dictionary in hand, you will find that the document makes sense. The biggest problem is usually that attorneys have a unique sense of what is good sentence structure, but this can be surmounted. Usually, there is very little in a legal document that does not pretty much need to be there.

It helps a great deal to read the guardianship statutes, RCW 11.88 and RCW 11.92. All libraries carry current versions of these statutes.

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