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Saturday, July 31, 2010

What is a Guardianship?

The word "guardianship" often strikes terror into the heart of the person who hears the word. The media prints many horror stories and individuals pass more personal horrors stories to friends. Unfortunately, guardianships have given a bad rap but some of it is earned. Let me tell you how guardianships work in Washington State:

  1. Any concerned person can initiate a petition of guardianship.

  2. The person initiating the guardianship does not have to be the guardian. You may recommend yourself or even someone else but the final decision is that of the Judge.

  3. You may or may not have to pay for the cost of initiating the petition. Talk with an attorney who is familiar with guardianships. If the AIP [Alleged Incapacitated Person] has assets [investments], chances are that the AIP's estate will pay all the costs of establishing the guardianship. If the AIP is low-income, the County may pay for all or part of the fees but at a reduced rate.

  4. Adult Protective Services can initiate a petition of guardianship under very strict guidelines. Typically, the process takes quite a long time. If you have a pressing concern about a loved one or friend and the APS worker agrees that a guardianship is needed, I would recommend initiating the guardianship yourself.

The Process:

  • The first thing that the judge does after reviewing the petition for guardianship is appoint a GAL [Guardian Ad Litem]. This is a specially trained "third party" who talks with the AIP and all who are concerned about the AIP. The GAL reviews the petition with the AIP and asks if the AIP would like to be represented by an attorney. If so, the GAL will return to Court and ask the Judge to appoint an attorney to represent the AIP. The GAL then investigates whether there is financial exploitation, self-neglect, medical and safety issues. Then the GAL puts together a report for the Judge and will state 1) whether or not a guardianship is necessary or if there might be a less restrictive alternative 2) does the AIP need a full or limited guardianship and 3) whether the recommended guardian is appropriate or recommend a different guardian. The GAL has 45-days in which to complete the report and submit it to the Court.

  • The GAL could recommend a full or limited guardianship. A limited guardianship is anything that isn't a full guardianship. The limitations will be laid out in the Order of Guardianship.

  • If the AIP doesn't contest the guardianship, you can expect the process to take a minimum of 90-days from start to finish.

  • If the AIP contests [fights] the guardianship the process can take much longer. The attorney representing the AIP is required by law to represent what the AIP wants. It doesn't matter that the AIP might be unreasonable. The AIP has the right to take the guardianship all the way to a trial, either before a Judge or with a Jury.

After the Guardian is Appointed:

  • Within 90-days of appointment, a guardian [professional or family] needs to file a report. If it is a full guardianship, this will mean an inventory of the IP's [incapacitated person's] possessions and finances and a care plan explaining how the IP will be cared for.

  • After the 90-day report, a yearly report is required within 90-days of the anniversary of the Order of Guardianship. If the IP is on Medicaid or is a DDD [Development of Developmental Disabilities] client, the report time is typically three years.

  • The guardian still needs to notify the Court whenever there are substantial changes to a client's care or the client is moved to a different location. Moving the client out of the county the guardianship was originated in requires a Court Order.

Next: How Does a Guardian Get Paid?

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