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Guardianship FAQ

FAQ


WHAT ARE ALTERNATIVES TO GUARDIANSHIP OR CONSERVATORSHIP?

Because a person subject to guardianship or conservatorship loses many important rights, less restrictive alternatives including other protective arrangements must be considered prior to establishing a guardianship or a conservatorship. A court must find that an individual's identified needs cannot be met by a less restrictive alternative or a protective arrangement before establishing a guardianship or a conservatorship. Often, if you ask yourself "Why set up a guardianship or a conservatorship?" you may find that a less restrictive alternative may provide the protection that is needed.

Options Available before a Person Is Unable to Make Decisions
A person capable of making decisions can arrange for someone else to manage finances or personal care decisions in the event they are unable to do so in the future. Several methods commonly used to do this are discussed below.

A. Financial Decisions
All methods allowing someone else to handle a person's finances have potential to allow financial exploitation. Some methods have more safeguards than others. No method is safe unless the person managing the finances is trustworthy, stable, and available.

1. Durable Power of Attorney
A power of attorney is a document through which a person (the principal) gives someone else (the agent or attorney-in-fact) legal authority to act for the person (the principal). A durable power of attorney includes language indicating that the power will continue even if the principal becomes disabled or does not have decision making capacity in the future. If the document lacks this kind of language, the power of attorney is not "durable," and it terminates if the principal becomes incapacitated.

The language used in the power of attorney document determines the extent of the agent's powers. The document may give powers over financial affairs, health care, or both. Financial powers may be narrow or broad.

A durable power of attorney may be written to take effect immediately or to take effect only when the person becomes incapacitated. The latter type of power of attorney is called a springing durable power of attorney. These powers of attorney should include language describing how incapacity will be determined.

Durable powers of attorney have many advantages. They are relatively simple and inexpensive to arrange compared to trusts or guardianships or conservatorships. The agent under the power of attorney is a fiduciary, meaning legally required to manage the principal's assets in the interest of the principal.

Powers of attorney can be abused. A potential disadvantage of powers of attorney compared with guardianships or conservatorships is the lack of a protective oversight system. (Guardians and conservators, by contrast, must report periodically to the court). Professional guardian and conservators are certified and regulated by a board through the state's court system. Problems with powers of attorney, such as failure to provide an accounting can be addressed in legal proceedings under state law. When a power of attorney is abused or mismanaged, however, losses may be difficult or impossible to recover.

For more information go to the website www.washingtonlawhelp.org select Planning Ahead/Seniors and then Power of Attorney and Guardianship of an Adult.

2. Trusts
A trust is a legal arrangement through which a person (the grantor) transfers money or property to a trustee who manages the property for the benefit of the grantor or other named beneficiaries. Trusts are flexible tools that can accommodate a variety of goals. A trust may be drafted to allow a person to retain control of assets until the individual no longer has the ability to make decisions. Trusts are complex, however, requiring careful consideration, drafting, and management. They may be completely impractical for a person with small assets. Advice of an attorney specializing in this area is essential.

3. Joint Property Arrangements
Holding an asset in joint ownership is an informal method some people use to allow a person to manage their finances. Sometimes this works well. For example, married spouses or domestic partners may hold funds belonging to both of them in joint accounts. This allows either spouse or domestic partner to manage the funds without a guardianship or conservatorship if the other spouse or domestic partner becomes unable to make decisions.

Joint property arrangements also may be inappropriate or hazardous. Sometimes a person changes a solely-owned account to a joint account held with a family member or friend who made no deposits to the account, intending only to get help with writing checks and to leave the balance upon death to the joint holder. This may work well for some situations, but is an arrangement particularly subject to abuse.

The funds held in a joint bank account with right of survivorship continue to belong to the depositors in proportion to the funds each has deposited. A joint account holder has access to the account, however, and too often thinks the money belongs to them.

Recovering losses when joint accounts are abused can be very difficult. Difficulties increase with poor record-keeping and lack of clarity about authorized spending. Making someone a joint account owner does not necessarily create a "fiduciary" legal obligation in the way that a power of attorney automatically does.

If the reason for adding a person to a bank account is simply to enable the person to write checks on your behalf, joint ownership of the account is not required. Instead, you can simply add the person to the signatory card. Although this method will not transfer the account automatically on death, a simple will can do so, with less risk.

Transferring an ownership interest in an asset, especially real estate, may have unintended effects. If the new joint owner of the property has creditors, dies or divorces, the transferred interest in the property may be affected in ways the original owner did not anticipate.

Joint property arrangements also may have unintended or undesired tax and estate planning consequences. Gift or inheritance taxes are a consideration for some people. Receiving property as a gift instead of as an inheritance may cause different (less favorable) capital gains tax treatment for the recipient. A joint owner may manage assets without knowing and respecting the original owner's estate plan, disrupting intended distributions to heirs.

Eligibility for public benefits based on financial need (such as Medicaid, SSI, and cash assistance for low-income families) also can be affected by making joint property arrangements. Assistance programs such as SSI cash assistance and Medicaid long- term care programs can disqualify people for "transferring" assets. Adding a person as an owner may be treated as a transfer. Eligibility for many assistance programs is affected by the assets a person "owns". Being added to an account or property as an "owner" may cause ineligibility.

For all these reasons, it's important to obtain individualized legal advice before using joint property arrangements to give someone authority to manage assets.

4. Utility Company Third Party Notification
Most utility companies permit customers to designate a third party to be notified by the utility company if bills are not paid on time.

B. Health Care Decisions

1. Durable Power of Attorney for Health Care Decisions
A durable power of attorney can give the agent authority to make health care decisions for the principal when the principal becomes unable to make such decisions. Many durable power of attorney forms DO NOT include authority for health care decisions. To determine whether a particular power of attorney document includes these powers, read it carefully. Some people choose to have one durable power of attorney for health decisions and a separate durable power of attorney for financial decisions.

Unless the person is the spouse, state registered domestic partner, adult child or sibling of the principal, none of the following people may serve as an agent for health care decisions: the principal's physicians; the physicians' employees; the owners, administrators, or employers of the health care facility where the principal resides or receives care. An agent under a power of attorney, like a guardian, does not have authority to consent to certain electro-convulsive therapy or certain other psychiatric/mental health procedures. An exception occurs when the incapacitated person provided advance consent for electro-convulsive therapy or mental health hospitalization in a special mental health advance directive.

2. Living Will (Health Care Directive)
The Washington Natural Death Act allows an adult to make a written directive (commonly called a living will) instructing the person's doctor to withhold or withdraw life-sustaining procedures in the event of a terminal condition or permanent unconscious condition. Many people include a special durable power of attorney for health care decisions in the document, directing the agent to enforce the living will provisions. An information pamphlet with forms is available on the legal services website at www.washingtonlawhelp.org (select category Planning Ahead/Seniors).

The forms used for this may be called Directive to Physicians or Health Care Directives or Living Wills. Hospitals, home health providers, stationery stores, private attorneys, and the legal services website are sources for these forms. The state law describes the effects of making a Living Will and the procedures to do so. Because the law changed in 1992, forms produced before early 1992 may not include all options available under the current law.

3. Mental Health Advance Directives
Mental health advance directives were created by the legislature in 2003 to allow a person to express preferences and instructions about mental health treatment. A person with mental capacity to do so can use the directive to consent in advance to mental health treatment that may be needed later, when the person may not have capacity to consent. Advance consent can be given for mental health treatment such as inpatient hospitalization that otherwise would require a court order. The law contains many specific requirements, options and protections. The form used is in the law.

C. Living Arrangements
1. Senior Shared Housing Programs
In shared housing programs, several people live together in a group home or apartment with shared common areas. Congregate housing refers to complexes with separate apartments (including kitchen), some housekeeping services, and some shared meals. Many congregate care facilities are subsidized under federal housing programs. Personal care and health oversight are usually not part of the facility's services, but they may be provided through other community social services.

2. Community Residential Care
These are small supportive housing facilities that provide a room, meals, help with activities of daily living, and protective supervision to individuals who cannot live independently, but who do not need institutional care.

3. Assisted Living
Assisted living facilities provide an apartment, meals, help with activities of daily living, and supervision to individuals who cannot live independently, but who do not need institutional care.

4. Nursing Home
Nursing homes provide skilled nursing care and services for residents who require medical or nursing care; or rehabilitation services for injured, disabled or sick persons.

5. Continuing Care Retirement Communities (CCRCs)
CCRCs, also called life care communities, usually require the payment of a large entry fee, plus monthly fees thereafter. The facility may be a single building or a campus with separate independent living, assisted living, and nursing care. Residents move from one housing choice to another as their needs change. While usually very expensive, many guarantee lifetime care with long-term contracts that detail the housing and care obligations, as well as its costs.

D. Financial Decisions and /or Health Care Decisions
Supported decision making may be an alternative to a guardianship or conservatorship. In supported decision making, the individual receives assistance in understanding the nature and consequences of their decisions.

The new guardianship and conservatorship law provides for Supported Decision Making Agreements in Washington. These agreements are between adults with disabilities and one or more "supporters". The supporter may provide assistance to the individual with respect to finances, health care, or other types of decision making. The supporter's role is to assist the individual in evaluating information, including accessing information as authorized under the agreement, with the goal of assisting the individual in understanding options and consequences of decisions. The agreement must be in writing, and the signing either notarized or witnessed by two qualified witnesses. There are limitations on who may be a supporter and who may witness the agreement being signed. See RCW 11.130.770-755. The assistance provided by a supporter may enable the individual to make decisions about their lives without the need for a guardianship or conservatorship.

Options Available after an Adult Becomes Incapacitated
When a person has difficulty managing finances or personal care, and advance planning directives (such as a durable power of attorney or other device discussed above) are absent or inadequate, consider the following options. A guardianship or conservatorship may not be the only option.

Heath Care Decisions

A. Consent to Health Care Statute
Washington law has a method for someone else to make health care decisions for an adult does not have the capacity to make a health care decision. (Note: Health care consent for minor children is different. Having a physical ailment does not necessarily mean the adult is not capable of consenting to health care).

An adult generally has the right to make decisions about what care or treatment is to be done to his or her body. Informed Consent means a person makes a decision about medical care (including the refusal of care) after being informed about the possible risks and benefits of the proposed care and of other options. To give informed consent, a person must have the mental capacity to understand the choices and make the decision.

Whether a person still has the mental capacity to make his or her own health care decisions sometimes is unclear. If the person believes he or she is able to make such decisions and the medical provider disagrees, a court may need to resolve the dispute in a guardianship proceeding.

The consent to health care statute provides authority for a substitute decision-maker when an adult in Washington does not have capacity to consent to health care. The order of priority for the substitute decision-maker for an adult is:

    i. The appointed guardian of the patient, if any;
    ii. The individual, if any, to whom the patient has given a durable power of attorney that encompasses the authority to make health care decisions;
    iii. The patient's spouse or state registered domestic partner;
    iv. Children of the patient who are at least eighteen years of age;
    v. Parents of the patient;
    vi. Adult brothers and sisters of the patient;
    vii. Adult grandchildren of the patient who are familiar with the patient;
    viii. Adult nieces and nephews of the patient who are familiar with the patient;
    ix. Adult aunts and uncles of the patient who are familiar with the patient; and
    x. (A) An adult who:
      I. Has exhibited special care and concern for the patient;
      II. Is familiar with the patient's personal values;
      III. Is reasonably available to make health care decisions;
      IV. Is not any of the following: A physician to the patient or an employee of the physician; the owner, administrator, or employee of a health care facility, nursing home, or long-term care facility where the patient resides or receives care; or a person who receives compensation to provide care to the patient; and
      V. Provides a declaration under (a)(x)(B) of this subsection
The standard the substitute uses in making health care decisions is:
  • Choose what the person, with his or her values and preferences, would want if he or she were competent to decide.
  • If, and only if, this determination cannot be made, decide based on what you believe is in the person's "best interests."
The process used is this: A physician seeking informed consent for proposed health care of a person who does not have the capacity to make a decision must make reasonable efforts to locate and get consent from a person in the highest priority class that applies to the patient (see list above). Thus if the patient has a guardian with health care authority, the physician must first attempt to reach the guardian for consent.

**Note that the new guardianship law states that if a person has a power of attorney for health care in effect during a guardianship, the guardian is to defer to the agent under the power of attorney. If no person is available in the highest priority class, the physician can seek authorization from the available people in the next lower priority class in which people are available. Consent cannot be given if a person in a higher priority class has refused to give authorization. When the priority class has multiple members (e.g. parents), the decision to consent must be unanimous among all available members of the priority class.

If the person has no available person in the classes listed in the law, establish a guardianship. In an emergency, however, consent to needed care may be implied. Some decisions require a court order rather than a guardian or agent's consent.

Electroconvulsive therapy, psychosurgery, and certain other intensive psychiatric/mental health treatment require court order.

Placement in a residential treatment facility, such as a nursing home, against the person's will, requires a court order in an Involuntary Treatment Act proceeding.

A court order may not be needed for some such mental health treatment, including hospitalization, when the patient has provided advance consent through a mental health advance directive.

B. Financial Decisions

1. Representative Payeeships
A representative payee is someone appointed by a government agency to act as a substitute to receive and manage the benefits owed to a recipient. Agencies using representative payeeships for benefits include:

  • Social Security Administration,
  • Veterans Administration,
  • Department of Defense,
  • Railroad Retirement Board, and
  • Office of Personnel Management (federal employee retirement)

The representative payee must use the government benefits on behalf of the beneficiary for the beneficiary's personal care or well-being. A guardianship or conservatorship is not needed to manage these funds. Agencies may refuse to allow a guardian or conservator to access the funds without first being appointed as representative payee. Some Washington state programs have similar provisions for protective payees.

Requests for a representative/protective payee are made to the government agency issuing the benefits. Sometimes, the person receiving benefits does not want a payee or wants a different person to serve as payee. The agency can explain any rights the person has to object and to appeal the decision.

2. Supervised Individual Indian Money Accounts
Some Native Americans receive one-time or recurring income from Indian trust land managed by the federal government or as compensation for the loss of Indian lands. If the person already has a guardian or conservator or has given someone a power of attorney, the Bureau of Indian Affairs (BIA) or the tribal provider of BIA services will work with the appointed person to manage the person's "Individual Indian Money" (IIM) funds. The BIA has a trust responsibility to ensure that withdrawals of IIM funds by an agent or guardian or conservator are used only for the benefit of the IIM account holder. If there is no appropriate, available person to serve as guardian, conservator or agent, the BIA should supervise the account in its capacity as trustee of Indian funds.

Before the BIA will supervise the account, the BIA may require a court, a BIA or tribal social worker, or another federal agency to determine that the individual needs help managing financial affairs. The BIA can be appointed as representative payee for the Social Security Administration (for SSI or Social Security benefits) or for the Veterans Administration. This appointment will trigger BIA supervision of individual Indian trust income as well.

Requests to have an Individual Indian Money account or other funds of a Native American who does not have the capacity to make decisions managed by the BIA are made to the U.S. Department of Interior, Bureau of Indian Affairs Superintendent at the particular BIA agency that manages the Indian trust land for that individual and tribe.

Community-Based Supportive Services
Finding appropriate supportive services can solve problems that otherwise could lead to an unnecessary guardianship or conservatorship. Some supportive services available in many communities are described below.

A. Money Management Services
Money management alternatives include automatic banking, direct deposit and personal money management services. Automatic banking allows the bank to pay regular bills. Direct deposit allows electronic deposit of regular sources of income into the recipient's bank account. Personal money management or bill paying services can be helpful but may be expensive. Choosing such a service requires careful consideration of the staff qualifications, management practices, and protections such as bonding and insurance to reduce chance of loss by negligence or theft.

B. Case Management
Case management can help functionally disabled adults get necessary support services. Case managers can assess a person's ability and needs, develop a detailed plan of care, and follow-up to ensure services are provided and changed as needed. Free case management may be available under state programs administered by the Division of Developmental Disabilities, Division of Mental Health, Division of Vocational Rehabilitation, or DSHS Home and Community Services. Local Senior Information and Assistance programs can suggest options for seniors.

C. Respite Care and Other Services
Case managers can help identify other available social and health services. These may include respite care, information and referral, adult day care, home health care, homemaker and personal care, home delivered meals, mental health services, adult day program/day care, vocational services, tenant support, legal services (for help with eligibility for funding of services), and transportation. Eligibility for publicly funded services may depend on income, assets, age and type of disability. Respite care may be available to help non-paid caregivers avoid burnout. Respite services range from brief day care or home care to temporary stays in hospitals or nursing homes.

This general information is based on information originally prepared by Northwest Justice Project, based on materials previously produced by Columbia Legal Services, with funding from the Snohomish County Department of Human Services. Right to reproduce in entirety granted for noncommercial purposes. Revised 12-21.

WHAT IS A GUARDIANSHIP AND WHAT IS A CONSERVATORSHIP?

In Washington's guardianship and conservatorship law, RCW 11.130, the state legislature included a statement of intent in order to explain the reasons for guardianship, conservatorship, emergency guardianship, emergency conservatorship and other protective arrangements. The statement reads as follows:

"It is the intent of the legislature to protect the liberty and autonomy of all people of this state, and to enable them to exercise their rights under the law to the maximum extent, consistent with the capacity of each person. The legislature recognizes that people with incapacities have unique abilities and needs, and that some people with incapacities cannot exercise their rights or provide for their basic needs without the help of a guardian. However, their liberty and autonomy should be restricted through guardianship, conservatorship, emergency guardianship, emergency conservatorship, and other protective arrangements only to the minimum extent necessary to adequately provide for their own health or safety, or to adequately manage their financial affairs."

This statement indicates that a guardian's and a conservator's role is to advocate for the rights of the person and help make the most of the person's abilities, with as minimal restrictions as needed. A guardian and a conservator may have substantial authority and duties to protect the health (guardian) and finances (conservator, guardian to a limited extent) of the person, while balancing those duties with minimizing the negative impact on the independence of the person. A protective arrangement may be ordered by a court to provide for the protection needed, while avoiding the impact on independence of a guardianship or a conservatorship. An emergency guardianship or conservatorship may be appropriate to address an emergency need of the individual for a limited period.

Guardianship and conservatorship in Washington State are legal processes in Superior Court, in which a guardian and/or a conservator is appointed to exercise the legal rights of a person subject to guardianship and/or conservatorship. The individual may need a guardian or a conservator, or both.

Initially in a guardianship and/or conservatorship proceeding, the individual is referred to as the respondent. If a guardianship or conservatorship is established, the person is referred to as the "individual subject to guardianship" and/or "individual subject to conservatorship". [See Revised Code of Washington (RCW) 11.130.010 (13) and (14).]

A guardianship for an adult may be established by the superior court if the court makes certain findings based on clear and convincing evidence. For guardianship, the court must find that:

1. The person lacks the ability to meet essential requirements for physical health, safety, or self-care because they are unable to receive and evaluate information or make or communicate decisions, even with appropriate supportive services, technological assistance, or supported decision making;

2. Appointing a guardian is necessary to prevent significant risk of harm to their physical health, safety, or self-care; and

3. The person's identified needs cannot be met by a protective arrangement instead of guardianship or other less restrictive alternative.

A conservatorship for an adult may be established by the superior court if the court makes certain findings based on clear and convincing evidence. For conservatorship, the court must find that:

1. The adult is unable to manage property or financial affairs because one of two reasons. One reason may be a limitation in the adult's ability to receive and evaluate information or make or communicate decisions, even with the use of appropriate supportive services, technological assistance, or supported decision making. Another reason would be if the adult is missing, detained, or unable to return to the United States;

2. The appointment of a conservator must be necessary to either avoid harm to the adult or significant dissipation (wasting) of the property of the adult; or to obtain or provide funds or other property needed for the support, care, education, health, or welfare of the adult or someone with a right to the adult's support.

3. Lastly, the adult's identified needs are not able to be met by a protective arrangement or other less restrictive alternatives.

Following a hearing, the court may establish what decision making powers the guardian or conservator will have and how long they will last. A limited guardianship may cover only decisions in certain areas (for example, residential placement.) A limited conservatorship may cover decisions with respect to certain property or finances of the individual. A full guardianship, on the other hand, transfers authority for all major decisions with respect to the person to the appointed legal guardian. A full conservatorship transfers authority for all major decision with respect to the individual's property and finances to the legal conservator.

When a guardianship and/or conservatorship has been established, the individual may lose the right to:

  • Marry or divorce
  • Vote
  • Enter into a contract
  • Have a driver's license and drive
  • Buy, sell, own, or lease property
  • Consent to or refuse medical treatment
  • Decide who will provide care

Because establishing a guardianship and/or conservatorship may restrict an individual's ability to exercise certain rights on his or her own, without involvement and assistance from others, it should only be considered after alternatives to guardianship or conservatorship have proven ineffective or are unavailable.

Guardianships and conservatorships are meant to provide proper care and advocacy for vulnerable adults, while granting extended responsibility to the guardian and conservator. Given the scope of the guardian's or conservator's authority, several measures exist to ensure that guardians and conservators are accountable for their decisions. Superior Courts retain ultimate responsibility for protecting the individual subject to guardianship and/or conservatorship. In addition, regulatory oversight of professional guardian and conservators comes from the Washington State Supreme Court's Certified Professional Guardianship and Conservatorship Board. The Board has the authority to review and approve applications for certification, set standards for ethics and training, hear grievances, and issue sanctions.

WHAT IS A GUARDIAN OR CONSERVATOR?

A guardian or a conservator is a person, a professional agency or a corporate fiduciary (such as a nonprofit corporation or bank trust department) appointed by a court to assist and protect a person who the court had determined needs assistance in managing their own affairs. In Washington, there are "professional" guardians and conservators and "lay" guardians and conservators.

  • RCW 11.130.010 (26) defines a "professional guardian or conservator" as a guardian or conservator appointed under RCW 11.130 who is not a relative of the person subject to guardianship or conservatorship under RCW 11.130 and who charges fees for carrying out the duties of court-appointed guardian or conservator for three or more persons.
  • A lay guardian or conservator may be a member of the individual's family, friend or other person interested in the welfare of the individual
  • A public guardian may provide guardianship and conservatorship services. A public guardian or conservator is a professional guardian and conservator that provides services under a contract with the Office of Public Guardianship (OPG) when there is no one else qualified, willing and able to serve. To be eligible for a public guardian, individuals must have incomes under 200 percent of the federal poverty level, or may be receiving long-term care services through the Department of Social and Health Services (DSHS).

WHAT ARE THE TYPES OF GUARDIANSHIP AND CONSERVATORSHIP?

Partial (Limited) Guardianship and Conservatorship
In a limited guardianship or conservatorship, the guardian or conservator assumes final decision-making authority for rights specifically specified by a court order. The individual subject to the guardianship and/or conservatorship keeps all other decision-making rights not specifically detailed in a court order.

Full (Plenary) Guardianship and Conservatorship
In a full guardianship or conservatorship, the guardian or conservator assumes final decision-making authority for all rights listed in Washington law (see RCW 11.130.310 for guardianship and 11.30.420 for conservatorship).

Emergency Guardianships and Emergency Conservatorships
In emergency guardianships and emergency conservatorships, the court can appoint someone for a limited period of time (up to 60 days). The court will only grant the specific authority needed to meet the individual's identified emergency needs. The court can appoint an emergency guardian to meet the individual's emergency health and welfare needs. The court can appoint an emergency conservator to meet the individual's emergency needs related to their property or finances. The court can be asked to extend an emergency guardianship or conservatorship for another 60 days if necessary.

WHO MAY SERVE AS A GUARDIAN OR CONSERVATOR?

Generally any suitable person over the age of 21 (or a parent under the age of 21) may qualify as a guardian or conservator. A person who has been convicted of a crime involving dishonesty, neglect, or use of physical force or other crime relevant to the functions the individual would assume as guardian is prohibited from serving, with an exception. The court after considering the facts may find that a relative convicted of a crime is qualified to serve as a guardian or conservator. An individual intending to serve as a guardian or conservator must disclose to the court the criminal convictions. The guardian or conservator must also disclose to the court bankruptcies, or whether they have been involved in insolvency or receivership proceedings. They must also disclose to the court any breach of fiduciary duty or a violation of any state's consumer protection act, or violation of any other statute proscribing unfair or deceptive acts or practices in the conduct of any business. The bankruptcies and other disclosed items may not necessarily disallow a person from being appointed as a guardian or conservator. The court may consider such information in determining whether someone would be a suitable guardian or conservator, however. Many relatives act as guardians and conservators and do not charge any fees for their services.

Professional guardian and conservators charge fees for their services. If a person expects to charge fees for services provided to three or more persons, they must become certified by the Certified Professional Guardianship and Conservatorship Board before being appointed by the court for more than two individuals. Additional qualifications are required to become a Certified Professional Guardian and Conservator.

A financial institution subject to the jurisdiction of the department of financial institutions and authorized to exercise trust powers, and a federally chartered financial institution when authorized to do so, may act as a guardian or conservator without having to meet the certification requirements established by the administrator for the courts.

WHO NEEDS A GUARDIAN OR CONSERVATOR?

There are many reasons for creating a guardianship or a conservatorship. Before petitioning for either, or both, it is important to determine whether it is the most effective and least restrictive means of protecting the individual from threats to their well-being. All other less restrictive alternatives should be explored before petitioning for guardianship or conservatorship, including whether a protective arrangement might work.

The following individuals might need a guardian and/or a conservator:

  • A child with a cognitive disability who is turning 18 who cannot manage their personal and financial affairs.
  • A person who cannot defend themselves against abuse, neglect or exploitation.
  • A person who has dementia and can't live independently.
  • A person who cannot manage their money to meet their needs.
  • A person who cannot make health care decisions.
Washington State law sets clear guidelines on the criteria for declaring an adult in need of a guardian or an adult or a minor in need of a conservator.

A guardianship for an adult may be established by the superior court if the court makes certain findings based on clear and convincing evidence. For guardianship, the court must find that:

  1. The person lacks the ability to meet essential requirements for physical health, safety, or self-care because they are unable to receive and evaluate information or make or communicate decisions, even with appropriate supportive services, technological assistance, or supported decision making;
  2. Appointing a guardian is necessary to prevent significant risk of harm to their physical health, safety, or self-care; and
  3. The person's identified needs cannot be met by a protective arrangement instead of guardianship or other less restrictive alternative.
A conservatorship for an adult may be established by the superior court if the court makes certain findings based on clear and convincing evidence. For conservatorship, the court must find that:

  1. The adult is unable to manage property or financial affairs because one of two reasons. One reason may be a limitation in the adult's ability to receive and evaluate information or make or communicate decisions, even with the use of appropriate supportive services, technological assistance, or supported decision making. Another reason would be if the adult is missing, detained, or unable to return to the United States;
  2. The appointment of a conservator must be necessary to either avoid harm to the adult or significant dissipation (wasting) of the property of the adult; or to obtain or provide funds or other property needed for the support, care, education, health, or welfare of the adult or someone with a right to the adult's support.
  3. Lastly, the adult's identified needs are not able to be met by a protective arrangement or other less restrictive alternatives.
For minors, the requirements are different. There are two requirements.

  1. The conservatorship must be in the best interest of the minor.
  2. The conservatorship must be necessary for one of three reasons. The minor's funds require protection or management. There is unreasonable risk to the minor's finances. A conservator is needed to obtain or provide funds or property for the minor's needs.

**Note that the criteria for a guardian for a minor are different. Please see the information on the Minor Guardianship tab.

Finally, the statute notes that a determination by the court that the basis exists for the appointment of a guardian is a legal decision, not a medical decision. The determination must be based on a demonstration of management insufficiencies over time in the area of physical health, safety, or self-care. Age, eccentricity, poverty, or medical diagnosis alone are not sufficient basis to justify a determination that a guardian should be appointed.

The need for a guardianship or conservatorship filing may be the result of an investigation or inquiry initiated by Washington State Adult Protective Services (APS), a determination by the Division of Developmental Disabilities, a hospital or care facility social worker, or the intervention from a friend or family member.

A guardian is appointed when an individual has demonstrated difficulties managing personal care. A conservator is appointed when an individual has demonstrated difficulties managing financial affairs. The court makes a legal determination that the individual does not have certain abilities. Not having certain abilities does not mean that a person has no ability to make decisions or understand their circumstances, but that they are at significant risk of harm in their personal or financial matters.

The elderly, adults with disabilities, persons suffering from traumatic injuries or mental illnesses are the persons most commonly needing a guardian and/or a conservator. Each person's ability to make decisions for themselves may vary widely. A guardian or a conservator may have a limited appointment when a person has the abilities in a particular area, or a "full" guardian or conservator if decision-making is needed in all areas of a person's personal life or financial affairs.

Many elderly have no relatives or no relatives who are willing or able to see them through the end of their lives. Their lack of abilities may arise from a loss of cognitive abilities or physical functions that impact their ability to acquire assistance for themselves. A guardian may assist in locating an appropriate care facility, manage day to day finances (unless a conservator is appointed for that purpose), and apply for public benefits. Ultimately the guardian is responsible for arranging hospice care and making end of life decisions.

Others may need some assistance in either personal care or financial matters. An adult with disabilities may need a guardian or conservator for the rest of their life, but those suffering from injury or mental illness fully recover functionality and no longer need such assistance. It is the guardian's and conservator's responsibility to assist each person to live as independently and self-reliant as possible and to change or end the guardianship or conservatorship when appropriate.

WHAT DO GUARDIANS AND CONSERVATORS DO?

When a person becomes a guardian or conservator, they enter into what is known as a fiduciary relationship with the individual. It is important to understand what this means.

As a fiduciary, guardians and conservators owe the highest duty of care to the individual for whom they are appointed. This is an important position of trust. Guardians and conservators must always act with honesty, fidelity and loyalty toward the individual they are serving. They must put the interests of the individual before their own.

Guardians and conservators must avoid conflicts of interest and self-dealing. Conflicts of interest or self-dealing occur when a fiduciary's independent judgment on behalf of the individual may be compromised by a competing interest. For example, there would be a conflict of interest if a conservator wished to sell the individual's automobile to the conservator's daughter. There would be a conflict between the conservator's duty to get the best price for the individual and the temptation to give their daughter a good deal.

Guardians and conservators should provide full disclosure to the individual of their decisions and actions on the individual's behalf. This may not always be easy for the guardian or conservator, or the individual. Guardians and conservators must do this in a manner and to the extent that the individual can understand and appreciate this information.

When making decisions guardians and conservators utilize two main standards to make decisions - Substituted Judgment and Best Interests. Additionally, conservators use a prudent investor standard.

Substituted judgment is the primary standard that guardians and conservators must use when making decisions on behalf of an individual. The substituted judgment standard requires the guardian or conservator to make a decision that best reflects what the individual would like to do, or would have decided when they were able to make decisions, with certain exceptions.

If the guardian or conservator is not able to determine what decision the individual prefers or would have preferred, they are responsible for making a decision which is in the best interests of the individual. That's also the case when what the individual wants or would have wanted would unreasonably harm or endanger their welfare or personal or financial interests. In conservatorships, if what the individual wants or would have wanted would reduce the individual's resources such that the individual's well-being and lifestyle can't be maintained, the conservator would also make a decision considering the individual's best interest.

Making a decision in the individual's best interests involves considering information from professionals and people who have shown concern about the individual's welfare. It also includes considering information the guardian or conservator believes the individual would have considered if able to act. The third type of information to consider is other factors a reasonable person in the individual's circumstances would consider, including consequences for other people.

The prudent investor standard for conservators includes considering a number of factors such as the individual's overall circumstances, economic factors, tax consequences, the need for funds for the individual's needs, etc.

Guardian and conservators must be able to communicate appropriately with the individual, their family and other people important to the individual, the court and other professionals. This communication involves written plans and reports and other types of communication appropriate to the situation. Guardian and conservators should be able to engage in constructive problem solving.

Guardianship
The guardian may exercise those rights that have been removed from the individual and assigned to the guardian, such as providing medical, mental and personal care services and determining the place and kind of residential setting best suited for the individual. The guardian must prepare a plan for the individual and how their needs will be met and file it with the court. The guardian must also periodically report to the court regarding the status of the individual.

When the court appoints a guardian, the guardian may have the following responsibilities:

  • Monitor the conditions and needs of the individual;
  • Receive health information from all providers who are covered entities under the Health Insurance Portability and Accountability Act (HIPAA), and/or their business associates;
  • Provide substitute informed consent (RCW 7.70.065) for medical or dental treatment, medications for the individual, including surgery, except where contrary to law;
  • Review, release, consent to the release of and use as appropriate all medical, dental, mental health, psychological, psychiatric, medication, laboratory and social services work records, charts, evaluations and reports concerning the individual;
  • Consent to and arrange for, or refuse to consent to, medical, dental, psychological or psychiatric treatment and care, including any and all medications, diagnostic testing, evaluation, examination, placement and/or transfer to an appropriate health care facility such as, but not limited to, an adult family home, hospital, assisted living facility or nursing home;
  • Select or discharge any health care or medical provider;
  • Decide code status of the individual subject to guardianship, including the use of life sustaining measures, intravenous therapy, tube feedings, hydration, antibiotics, pain medications and comfort care;
  • Provide for or contract for case care or management services on behalf of the individual;
  • Facilitate important relationships of the individual and if possible, assist them in regaining their rights that have been removed
  • Provide for such other personal assistance as the individual requires;
  • Take reasonable care with respect to the individual's personal effects and any pets or service animals;
  • Establish a pre-need burial or cremation plan for the individual
  • If given the authority by the court, apply for benefits for the individual and receive funds as a representative payee, protective payee or authorized representative;
  • Pay any funds received for the individual's current needs, and save any fund not needed currently for the individual's future needs.
Conservatorship
A Conservator is one who is given authority over property and finances of the individual. The conservator is required to inventory the property, invest it prudently, use it for the individual's support, and account for it by filing periodic reports with the court. In addition, the conservator must obtain court approval for certain financial transactions.

"Conservatorship Estate" is defined as all property subject to the conservatorship which may include real and personal property, tangible and intangible, and includes anything that may be the subject of ownership.

When the court appoints a conservator, they may be assigned the following responsibilities:

  • Manage the financial affairs of the individual, including but not limited to contracting for and incurring obligations on behalf of the individual, becoming representative payee of any income from Social Security, income from employment of the individual, and any other sources of revenue or income;
  • Locate and gather assets;
  • Enter any safe deposit box(es) held in the name of the individual (individually or with another), and inventory and/or remove any contents there from, and to maintain and/or close said box(es) or to add items thereto, or to drill open the safe deposit box(es) in the event the keys to the box(es) are misplaced or missing, as deemed by the Conservator to be in the individual's best interests;
  • Close any financial accounts, including bank accounts held individually or jointly with another, and to make withdrawals, deposits or transfer of funds into or out of any such accounts, without the necessity of obtaining the written authority of any other person named on any such joint accounts;
  • Establish conservatorship account(s);
  • Expend funds as necessary for the benefit of the individual subject to review by the Court;
  • Convert all holdings, including but not limited to savings accounts, money market accounts, IRAs, mutual funds, stocks, bonds, cash, automobiles, mobile homes, and any other personal property, including pensions, annuities, 401Ks, and any other income, into the name of said Conservator as fiduciary for the purposes of the conservatorship; and all other reasonable duties required of a conservator;
  • Obtain financial information or assets from any bank, savings and loan, credit union, stock brokerage, insurance company, or other institution holding assets of the individual, including but not limited to cash, investments, stocks, bonds, certificates, funds, safe deposit box or personal property;
  • Remove the individual's name from any joint bank account and/or financial account and change the mailing address of any bank and/or financial statement to any address the Conservator may request. In the event that an asset has signatories or co-owners in addition to the individual, the Conservator shall have the authority to block all access to such account, safe deposit box or property until true ownership has been discovered;
  • Enter any dwelling, residence or storage area rented or owned by the individual, or access the land or property owned or rented (individually or with another) by the individual without the necessity of obtaining the written authority of any other person named on any such dwelling, land, property or storage area;
  • If it appears that the sale of real estate will be necessary to pay for the individual's expenses, the Conservator shall have the authority to retain a real estate appraiser to appraise said real estate, in order to petition the court for authority to sell the real property;
  • Make disbursements for nursing home care, medical expenses and incidental expenses on behalf of the individual;
  • Arrange pre-need cremation or burial arrangements as may be necessary;
  • Remove change, and/or re-key any lock to the individual's home, apartment, storage unit, rental property, vehicles or any other locked property that is owned by the individual;
  • Obtain any and all information and records from DSHS or other government agencies or entities;
  • Apply for any government assistance needed by the individual (unless the guardian has been given this authority) and to assist the individual in accordance with statute to accomplish receipt of benefits she is entitled to;
  • Make arrangements for income tax reporting and making payment of income taxes; and
  • Invest and reinvest conservatorship assets in accordance with the prudent investor decision making factors

WHAT ARE GUARDIANS AND CONSERVATORS PROHIBITED FROM DOING?

A Guardian May Not Force an Adult Subject to Guardianship to Stay in a Particular Residential Setting
A guardian is responsible for selecting, and if necessary advocating for, a safe and appropriate residence for the individual subject to guardianship. In order to carry out this duty the guardian must do some research and learn what residential options are available in the local community. There will normally be a continuum of choices ranging from independent living in a private home to supported living in an assisted living facility, group home or even a skilled nursing facility. The guardian must be familiar with the individual's level of functioning in order to determine the appropriate residential setting. It will be important to know whether the individual will need assistance with preparing meals, personal hygiene or managing medications.

It will be important to confer with the individual to determine their current preferences. The individual's current preferences should be honored if doing so will not put them at risk of harm. If possible, the guardian should try to determine what choice the individual would make if they knew all the present facts and circumstances and still had the ability to make sound decisions. This might be the case when the individual had the ability to make sound decisions through most of their life and voiced clear opinions on the subject. However, it is not always possible to obtain this information, such as when the individual has not had decision making abilities since birth.

A guiding principle is that the guardian must prioritize the least restrictive residential arrangement that will be safe and appropriate to meet the individual's needs. Another guiding principle is that the guardian must prioritize a location that will allow the adult to interact with persons important to them. These two guiding principles apply unless it's not the individual's current or former preference (substituted judgment), or contrary to their best interest (the decision making standard if substituted judgment doesn't apply). This may mean leaving the individual where they are, moving them to a more restrictive environment or perhaps even to a less restrictive environment. The goal is to preserve the maximum amount of freedom and independence for the individual while still keeping them safe from harm.

There are resources that can assist you in supporting the person in the least restrictive setting. See "Stay Right Where You Are: Resources for Seniors and Adults with Disabilities Living at Home in Washington State".

A guardian must understand that they can only go so far in securing a safe and appropriate residence for the individual. A guardian cannot force the individual to stay in a particular residential setting. The individual is free to leave and may not be locked in or physically restrained from leaving. A specific statute [RCW 11.130.330 (7)] gives the individual a right not to be detained against their will in a residential care facility.

In certain limited situations the guardian may pursue other remedies in order to keep the individual subject to guardianship safe. If an individual, as a result of a behavioral health disorder (mental health or substance use disorder), is acting in a way that presents a danger to themselves or others, or they are gravely disabled from ineffective self-care, the individual may be detained in a psychiatric facility for evaluation and treatment. Under the Involuntary Treatment Act, the guardian may start this process by requesting an evaluation by a county Designated Crisis Responder. If the individual has a mental disorder or a substance use disorder and is a danger to themselves, others, property or is gravely disabled, and a Designated Crisis Responder (DCR) does not act to detain that person for evaluation and treatment, then the guardian may petition (ask) the superior court to review that DCR decision and consider an order to detain that person for initial detention. There are strict due process protections for the individual subject to guardianship in these proceedings, such as the right to be represented by an attorney, and to have a jury trial before any extended detention is imposed.

A Guardian May Not Consent to Some Medical Procedures without a Court Order

While the guardian may consent to most types of medical treatment, there are four medical procedures that require special attention:

  1. electro-convulsive therapy;
  2. psychosurgery, such as a lobotomy
  3. psychotropic medication or mental health procedures that restrict physical freedom of movement; and
  4. reproductive surgery, such as sterilization.
In any of these cases, the guardian must seek approval from the court. The court will want to know the:

  1. prognosis if no treatment is provided;
  2. prognosis if one treatment is chosen over another;
  3. of adverse side effects from the proposed treatments;
  4. intrusiveness or severity of the proposed treatments;
  5. individual's ability to cooperate and assist with post-treatment therapy;
  6. individual's religious or moral views regarding medical care or the dying process; and
  7. wishes of family or friends, if those wishes would influence the individual's decision.
The Court may consider what most people would do in similar circumstances, but this should not be regarded as controlling.

A Guardian May Not Restrict an Individual's Right to Associate with Persons of their Choosing unless Certain Exceptions Apply

An individual subject to guardianship has the right to in-person visits, phone calls, electronic communication, personal mail, etc. with others of their choosing. The guardian may not restrict an adult's right to communicate, visit, interact, or otherwise associate with persons of the adult's choosing, except in the following situations.

  1. A court has specifically authorized the restriction on the interaction when the guardianship was established, or as later changed (modified).
  2. The restriction is in a protection order issued under chapter 74.34 or 26.50 RCW, or other law that limits contact between the individual and another person or persons.
  3. There's good cause to believe that there's an immediate need to restrict the individual's right to communicate, visit, or otherwise interact in order to protect the individual from abuse, neglect, abandonment, or financial exploitation, or unnecessary significant distress to the adult. If the guardian takes the step of restricting the interaction for these reasons, the guardian must file a petition for a protection order under chapter 74.34 RCW within 14 days. The restriction can stay until the court rules on the protection order, with an important exception, however. If the person being restricted is a relative or has a preexisting social relationship with the individual, the individual has a right to have the restriction is limited to no more than seven business days unless a protection order or other court order has already been obtained.
  4. The restriction is pursuant to participation in the community protection program under RCW 71A.12.
Guardian Actions Requiring Court Approval
 There are other decisions and actions that require the guardian to obtain court approval, or in some cases, follow certain procedures. More information on these issues is available in the Lay Guardian and Conservator Training.

Conservator Actions Requiring Court Approval
There are decisions and actions that require a conservator to obtain court approval, or in some cases, follow certain procedures. More information on these issues is available in the Lay Guardian and Conservator Training.

HOW IS A GUARDIAN OR CONSERVATOR APPOINTED?

Guardians and conservators are appointed by Superior Court judges or court commissioners. Appointments are made in response to petitions filed in Superior Court. Any interested person may file a petition; the person who files it need not want to be appointed as the guardian or conservator. The attorney general may file a petition when no other party is willing and able to file and there is cause to believe a guardianship or conservatorship may be necessary.

The petition for a guardianship asks the court (1) to determine that the individual identified in the petition lacks the ability to meet essential requirements for physical health, safety, or self-care due to the individual's inability to receive and evaluate information or make and communicate decisions, and (2) to appoint a guardian. A court cannot appoint a guardian for an individual unless it makes such determination and determines that the individual needs a guardian.

The petition for a conservatorship for an adult asks the court (1) to determine that the individual identified in the petition lacks the ability to manage property or financial affairs due to the individual's inability to receive and evaluate information or make and communicate decisions, and (2) to appoint a conservator. (If the adult is missing, detained or otherwise unable to return to the United States, that could be another reason.) A court cannot appoint a conservator for an individual unless it makes such determination and determines that the individual needs a conservator.

In emergency guardianships and emergency conservatorships the court must make determinations that an emergency exists, and appointment of an emergency guardian or conservator is likely to prevent substantial and irreparable harm either to the individual (guardianship) or the individual's property and finances (conservatorship). The timelines described below are different for emergency guardianship and conservatorship actions.

Before a decision is made about whether a guardian or conservator is needed, the following should occur:

  1. Within five days after a court petition has been filed, the individual should be served with a guardianship and/or guardianship proceeding notice.
  2. Hearings are usually held 45 to 60 days after service. An individual for whom the petition was filed (known as the "respondent") who objects to having a guardian/conservator is entitled to have their objections considered at a hearing. They may be represented by their own lawyer at the hearing. If they want a lawyer and can't afford to hire one, the court will appoint a lawyer for them. A guardian/conservator may only be appointed if the court is convinced, after the hearing, that a guardian/conservator is needed.
  3. Prior to the hearing on the petition, a court visitor is temporarily appointed by the court to investigate the need for a guardianship/conservatorship. The court visitor is required to obtain a medical/psychological evaluation regarding the respondent's abilities and present recommendations to the court. The court visitor fees are allocated by the court. Fees may be allocated to the petitioner, the respondent and/or other parties to the petition. If the court finds that these fees would result in hardship to the respondent, the county bears responsibility for these costs.
  4. At least 15 days prior to the hearing on the petition, the court visitor must file the final report. The report can recommend dismissal of the petition, a less restrictive option to guardianship/conservatorship, a protective arrangement or the appointment of a full or limited guardian. Copies of the report are provided to the following individuals:

    • the respondent and their counsel,
    • the petitioner and their attorney,
    • an agent under a power of attorney (unless the court orders otherwise), and
    • persons who the court orders for reason of public interest or other good cause.
Guardianships and conservatorships can be modified (changed) or terminated (ended) at any time by the court after the petition has been granted. Anyone, including the individual, may ask the court for a change in the guardianship/conservatorship arrangement. Guardians and conservators are required to periodically report back to the court on the status of their cases.

HOW IS A GUARDIAN OR CONSERVATOR PAID?

Generally, a guardian and conservator is entitled to reasonable compensation for services provided for the benefit of the individual. Family members who serve as court-appointed guardian and/or conservator often do so without compensation. A professional guardian and conservator generally receives financial compensation to carry out the statutory responsibilities given by the court.

Reasonable compensation depends on the types of service being provided. The court will review the compensation paid to the guardian or conservator in the periodic reports filed they are required to file.

Guardians and conservators have a duty to conserve the estate of the individual. Accordingly, decisions to provide services and incur fees shall be made in such a way as to reflect this duty. Services requiring a minimal degree of training, skill and experience must be billed accordingly.

According to standards of practice for professional guardian and conservators, all compensation for the services and expenses of the guardian and conservator should be documented, reasonable in amount, and incurred for the individual's welfare. Guardian and conservators should not pay or advance to themselves fees or expenses from any source except as approved by the court. Guardian and conservators should review each of the following factors in determining the reasonableness of their fees: (a) The necessity and quality of the services provided; (b) The experience, training, professional standing, and skills of the guardian or conservator; (c) The difficulty of the services performed, including the degree of skill and care required; (d) The conditions and circumstances under which a service was performed, including whether the service was provided outside regular business hours or under dangerous or extraordinary conditions; (e) The effect of the services on the individual subject to guardianship or conservatorship; (f) The extent to which the services provided were or were not consistent with the guardian's plan under RCW 11.130.340 or conservator's plan under RCW 11.130.510; and (g) The fees customarily paid to a person that performs a like service in the community.

When requesting court approval, guardians and conservators should disclose all compensation, fees and expenses requested, charged, or received in a guardianship/conservatorship case to the court, the individual, and parties entitled to notice. The guardian/conservator should maintain contemporaneous time and billings records for services which shall state: (a) date and time spent, (b) service performed, (c) the identity and job classification of the person performing the service, (d) expenses incurred, and (e) subject matter of conferences, staffing, or telephone calls of significant duration.

The duties of a guardian or conservator to an individual are not conditioned upon the person's ability to compensate the guardian/conservator.