AGING AND LONG-TERM SUPPORT ADMINISTRATION
Guardianship Basics - Frequently Asked Questions
NOTE: THESE MATERIALS WERE DEVELOPED AS A GENERAL GUIDE AND ARE NOT INTENDED AS LEGAL ADVICE. THEY APPLY TO ADULTS AND ARE NOT INTENDED TO ENCOMPASS CUSTODY AND GUARDIANSHIP ISSUES FOR MINORS.
What is a guardianship?
A guardianship is a legal mechanism by which one individual or entity (a guardian) is appointed by a court to exercise certain decision making functions on behalf of, and in the place of, an individual that is legally “incapacitated.” When a guardianship is established, the incapacitated person’s legal right to make certain decisions with respect to his or her personal and/or financial affairs is removed and responsibility for making such decisions is placed in the court-appointed guardian.
What types of guardianships are there?
- Guardianship of Estate: responsible for financial and estate matters only.
- Guardianship of Person: responsible for non-financial decision making.
- Guardianship of Person and Estate: a full guardianship of person and estate.
Limited guardianship: the court can choose to let an incapacitated person retain any rights it feels he/she is capable of exercising on his/her own.
Co-guardianship: can be of person, estate, or both. This is when two persons share the decision making responsibility equally.
When is a guardianship warranted?
- A guardianship may be established only if the person is legally “incapacitated.” A person is deemed incapacitated when “the individual has a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety.” A person is deemed incapacitated as to his/her estate when “the individual is at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs.” Merely because a person makes poor decisions does not necessarily mean he/she will be found legally incapacitated. A person with capacity is free to make poor choices of his/her own accord.
- Standby guardian: this person has no decision making authority unless the primary guardian is unavailable (usually when emergency health care decisions must be made).
- Resident Agent: This is a Washington resident chosen to receive service of process on guardianship matters for a guardian who lives out of state. This person has no decision making authority.
- Parent: After a client is 18 years old, he/she is an adult and his/her parents are no longer the client’s legal guardians. Parents do retain the ability to make informed consent decisions if no legal guardian has been appointed. Parents must petition the court if they want to remain the legal guardians.
What duties does a guardian have?
Guardians’ duties are outlined in the court order that appoints them. In general, this includes financial management, health care decision making, residential placement*, reporting to the court, and miscellaneous decision making in the best interest of the incapacitated person. Guardians should not be managing every aspect of a person’s life. They are not care providers. They should be facilitating and advocating with care providers for the person, but not performing the tasks themselves at an additional fee to DSHS.
*Note, however, that guardians may not consent to detain an incapacitated person in a residential treatment facility against their will.
What are the duties of a guardian ad Litem?
When a petition is filed to establish a guardianship, the court appoints a guardian ad Litem (GAL). The GAL represents the client’s best interests (not the client him or herself) in the guardianship proceeding. The GAL also acts as a neutral investigator for the court. The GAL will arrange for a physician or psychologist to examine the client and, based in part on that examination, submit a report to the court on whether the client is legally incapacitated. The GAL also conducts an investigation to determine if the proposed guardian is fit to serve, The GAL writes up a report on his/her findings and recommends to the court what it should do. The final decision is always with the court itself. GAL’s also may have the power to make emergency medical decisions during the time they are appointed by the court. GAL’s may also petition the court for interim orders that may be necessary until the guardianship is established. Once the investigation is complete, the GAL is usually dismissed and no longer has decision making power for the person.
Who has the final say on client issues?
The guardian and the incapacitated person work together to protect and enhance that person’s life. In most instances, the guardian has the final say on issues involving the incapacitated person. The guardian is directed in his or her decision making by what the incapacitated person would have done in such instance, were he or she not incapacitated. Consequently, it is important for the guardian to consider the incapacitated person’s expressed wishes, if the incapacitated person has that ability. When disputes arise, case managers may try to work together to craft a compromise that protects the client’s best interests. If this is unsuccessful a court will hear the dispute and decide the issue. The dynamics of this relationship can vary depending on the capacity of the client and where he/she is living.
Who can be a guardian for an adult?
To be a guardian you must be 18 years or older, of sound mind, not convicted of a felony or gross misdemeanor involving dishonesty or immorality, and found suitable to perform a guardian’s duties by the court. The Court may consider other factors as well. If you are not a Washington resident, you must designate an in-state agent for service of process. A corporation can be a guardian if it is authorized to act as a fiduciary. If you are being paid to be guardian for three or more persons who are not your family members, you cannot be a guardian unless you are certified. Current DSHS employees should not be paid guardians without complying with Administrative Policy 18.18 on outside employment. If an employee wants to be an unpaid guardian for a person who is a DSHS client, consult with your supervisor in order to ensure no conflicts of interest will arise between your duties as a guardian and your responsibilities as a DSHS employee.
How can APS establish or remove a guardianship if it is needed?
APS staff should refer to Chapter 6 of the Long-Term Care manual, under Legal Protective Services and Remedies for the process APS must follow.
Can I recommend a particular guardian or attorney to a family member?
You should not make specific recommendations about who would be a good guardian or attorney. Such recommendations can cause a conflict of interest or it can look like the state is penalizing guardians it doesn’t recommend. It is best to refer them to a local advocacy organization.
How long does a guardianship last?
Guardianships are normally perpetual as long as the client remains legally incapacitated and as long as the guardian remains competent and meets the statutory requirements. Only an order of the court that initially established the guardianship can terminate it. If a guardian does not report regularly to the court the guardianship can become delinquent. Reports occur on a one, two, or three year basis and allow the court to ensure the guardian is making appropriate decisions and managing the client’s money properly. A guardianship can be inactivated by the court if the reporting requirements are not followed.
Once the guardian is appointed, they receive “Letters of Guardianship”. Often, the Letters terminate upon a date, which coincides with the date when the guardians’ next report is due. If the guardian fails to report and obtain renewed letters, and the previous letters expire, the guardian no longer has Court authority to act on behalf of the incapacitated person, although they remain legally liable for their actions. Consequently, when DSHS is informed that a guardian has been appointed for a client, it is a good idea for DSHS to obtain a copy of the order and most recently issued Letters of Guardianship.
Can guardians be removed or have their guardianships modified?
Yes. Guardians are subject to the jurisdiction of the court that appointed them. They can be removed for not acting in a client’s best interests or not following the court’s reporting procedures. Guardianships can be modified for a number of reasons, including a change in the client’s medical status or financial circumstances. Guardians can also be removed or limited in their duties if they become incapacitated in some way themselves. Legal action to remove a guardian is a serious step and may be appropriate. In some cases it may be suitable to explore other avenues to work with that person or agency.
If I am asked to fill out a declaration will I have to go to court?
When DSHS is petitioning for the appointment of a guardian, objecting to a guardian’s fees or is asking the court to remove or modify a guardianship, the social worker/APS worker will usually be asked to describe the circumstances of the case and make recommendations to the court. This is called a declaration. In consultation with the Assistant Attorney General, you will be asked to address certain issues and state the facts and your first hand impressions truthfully in a narrative form. This is submitted to the AAG who prepares the legal document we will submit for your signature, under penalty of perjury. Case managers who have made a declaration are asked to attend the court hearing. They need to be available to answer any questions the Judge may have, but are rarely asked to add anything beyond their written submissions.
What are the alternatives to guardianship?
Guardianship is a drastic measure, by which clients lost all or some of their decision-making ability. Not every adult needs a guardianship or even a limited guardianship, and guardianships can only be established when the person lacks capacity, as described above. If the only issue for a client is financial management, a representative payee for Social Security benefits may be all that is needed. If the issue is medical decision making, this could be addressed by ensuring that closely related family members are available to provide informed consent for treatment of medical emergencies. Other support needs may be satisfied by proper case management including providing eligible services or day programs.
What is ‘informed consent’ and how is it obtained when there is no guardian?
A person gives informed consent when he/she provides health care authorization for a person not competent to do so themselves. HCS/APS staff are not able to make these decisions for their clients. You should first work with the health care provider and explain the situation and give an honest assessment of the ability of the adult to make this decision. If the hospital refuses to treat a client due to concerns with his/her ability to consent to treatment, state law lists those persons authorized to make the decision for them. They are:
- Legal guardians;
- Someone holding a durable power of attorney for health care;
- A spouse;
- Children of the adult at least 18 years old;
- Adult brothers or sisters.
You should contact these people in the order above since the decisions of those listed first take priority over the others. If it is an emergency and the hospital or facility won’t act, APS/social work staff and the Attorney General’s Office can petition the court for appointment of a guardian ad Litem to make the decisions.
How are guardian and attorney fees handled when participation is available?
Guardians are required to provide notice of a fee request to the HCS Regional Administrator or designee. HCS has the opportunity to object to the request at a hearing. After the court has reviewed and approved the fees they send an order to DSHS to adjust the client’s participation. The amount of money the client pays for his/her cost of care is then reduced by the monthly amount the court directed. This allows the client to use his/her income to pay the guardianship fees (by law, guardianship fees cannot be paid directly by the state).
What are back fees and how are they billed and paid for?
For various reasons, some guardians will have fees that are approved by the court but there was not sufficient participation at the time to pay them. These unpaid fees can be held over until additional participation is available. When participation becomes available, it is reduced an additional amount over and above the monthly guardianship fees and costs to cover that amount. Back fees are only paid if the Regional Administrator received proper notice at the time the court initially approved the fees.
How much can guardians be paid and how is it determined?
State law gives DSHS the ability to set the maximum amount of fees it will allow for guardians and attorneys. In the WAC the Department set the maximum amount as $175/month for guardians and $600 for costs and attorney fees over a three year period. In order to pay guardians for occasionally performing “extraordinary” services, the WAC gives the court discretion to award “just and reasonable” fees in excess of the $175/$600 amounts.
What is the court’s role in guardianships?
The court has the ultimate authority in all guardianship related issues, including approval of all fees and costs. Courts review a guardian’s actions to ensure the guardian always acts in the best interests of the client. The courts also act as a final decision maker when the state and a guardian disagree on guardianship issues.
How are guardianships for Native American clients different?
If a guardianship was established by a tribal court, only that court has the authority to modify it. Each individual tribe has its own rules and regulations which it applies to guardianship issues. Because there are special rules governing who can appear before a tribal court, it is a good idea to work with the tribe’s social services staff when researching a guardianship issue. They may be able to bring the matter to the tribe’s attention informally and work with the state to solve the problem. You should consult your guardianship contact when any tribal issues arise.
What informational resources can I use to learn about guardianship?
- Chapter 11.88 RCW - Guardianship - appointment, qualification and removal
- Chapter 11.92 RCW - Guardianship - powers and duties of guardian
- WAC 388-79 - Guardianship fees for clients of the department
- National Guardianship Association (www.guardianship.org)
- Washington Courts Home Page (www.courts.wa.gov)