Petitioning for Guardianship
In Washington, anyone can file a petition for appointment of a guardian for someone who seems to be incapacitated. It is common for relatives, caregivers, and health care providers to file guardianship petitions. Adult Protective Services can also, in some limited cases, file guardianship petitions. A guardianship petition should be filed only in good faith and upon a reasonable basis.
The role of the petitioner is essentially just to start the process. If you file a guardianship petition, you are not agreeing to be the guardian. However, you are telling the Court that you believe a guardian should be appointed. If you do file a petition, here is what to expect:
1. The Court appoints a Guardian ad Litem. The Guardian ad Litem ("GAL") is not a guardian. The GAL is a court investigator. The term is confusing, but that's what we call court investigators in Washington.
2. The GAL investigates. The GAL meets with the alleged incapacitated person, talks with family and caregivers, reviews assets, and obtains a current medical report. The GAL may also arrange for an attorney to meet with and represent the alleged incapacitated person. That attorney may be appointed at public expense.
3. The GAL writes a report. The GAL report discusses whether the alleged incapacitated person needs a guardian, who should be the guardian, whether there are alternatives to guardianship. The GAL report and the medical report are filed under seal (confidentially) with the Court and distributed to some persons identified in the guardianship statute. A limited version of the GAL report which does not include detailed health care information may be more widely distributed. The parties may file a response to the GAL report.
4. The Court holds a hearing. The Court considers the GAL report and usually adopts the GAL recommendations. However, because a guardianship case limits civil rights (to make medical or financial decisions), an alleged incapacitated person may request a full hearing, up to a jury trial. Trials are rare. Usually a guardian is appointed unless another safe alternative can be found.
The process to appoint a guardian usually takes about 60 days, but this can be quicker in some cases and slower in other cases. If a guardianship petition is pending, the Court can give direction if there is an emergency.
If a guardian is appointed, the Court monitors their actions. Guardians report to the court periodically. A guardianship, once established, only ends if the incapacitated person recovers or passes away. Guardianship cases can be transferred to other states or counties if the incapacitated person moves.
Guardians may be paid either from the incapacitated person's assets ("the estate"), or in some cases, through Department of Social and Health Services. Attorneys are usually paid by the petitioner, the estate or through DSHS. Guardians ad Litem are usually paid by the Court or from the estate. The Court has the ability to look to any party to pay fees or costs associated with guardianship, so it is important to follow the law closely.
Guardianship is only one tool to protect incapacitated adults. It is not always the best option. If you are considering guardianship for someone you care for, I encourage you to get legal advice.