Guardianships are meant to provide proper care and advocacy for vulnerable adults, while granting extended responsibility to the guardian. Given the scope of the guardian’s authority, several measures exist to ensure that guardians are accountable for their decisions. Superior Courts retain ultimate responsibility for protecting the incapacitated person. In addition, regulatory oversight of professional guardians comes from the Washington State Supreme Court’s Certified Professional Guardianship Board. The Board has the authority to review and approve applications for certification, set standards for ethics and training, hear grievances, and issue sanctions.
Washington State Guardianship Laws
In Washington’s guardianship law, the state legislature included a statement of intent in order to explain the reasons for guardianship. 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 the guardianship process 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 the guardian’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 may have substantial authority and duties to protect the financial and health of the person, while balancing those duties with minimizing the negative impact on the independence of the person.
Guardianship in Washington State is a legal process in Superior Court, in which a guardian is appointed to exercise the legal rights of a person subject to guardianship, referred to as the incapacitated person or ward, who is at significant risk of harm based of a “demonstrated inability to adequately manage property or financial affairs” or “demonstrated inability to adequately provide for nutrition, health, housing or physical safety.” (See Revised Code of Washington (RCW) 11.88.010.)
Following a hearing, the court may establish the extent and duration of the guardian’s power as a decision-maker for the incapacitated person. A limited guardianship may cover only decisions in one area (such as estate or property matters). A full guardianship, on the other hand, transfers authority for all major decisions to the appointed legal guardian.
When a guardianship has been established, incapacitated persons 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 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 have proven ineffective or are unavailable.
Download the Guardianship court documents.
Outside Washington State
You’ll find general information about state guardianship laws in Guardianship Proceedings and Powers. Information about guardianship laws in your own state may be available from your county probate court (which is likely to handle guardianship petitions) or the mental health department.
The National Guardianship Association (NGA) is another resource. The NGA recommends guardianship when alternatives have proven ineffective or are unavailable. Among the alternatives the NGA identifies:
- Representatives or substitute payees
- Case/care management
- Durable powers of attorney for property
- Durable powers of attorney for health care (a form of advance directive)
- Community agencies/services
Typical Proceedings and Powers
Following are some general characteristics of guardianship proceedings and powers. Because guardianship laws vary by state, these may not apply to your own circumstances.
- Typically, guardianship requires showing that the person lacks capacity to make certain decisions. In the case of medical/psychiatric treatment, lack of capacity requires that the person, due to his or her mental illness, is unable to refuse care or give informed consent. Informed consent can only be given when the individual understands the risks, benefits and alternatives to various treatment options.
- In some states, guardianship may be permitted if an individual’s decision-making capacity is impaired to an extent that it makes him/her more vulnerable to self-neglect or victimization by others.
- Guardianships may extend to decisions involving the ward (the subject of the guardianship,) the ward’s property or both.
- The extent of the guardianship depends on the laws of the state and the powers granted by the court in the guardianship document itself.
- Hospitals, medical providers and others may require you to provide proof of court appointment before divulging personal information about a ward. Carrying a copy of the court order is usually sufficient.
It is important to note that appointment of a guardianship may negate a ward’s ability to seek voluntary treatment. In other words, if a court deems that the person lacks capacity to make treatment decisions, some states will not permit the person to self-admit for treatment because they are assumed to be incapable of making that decision.
The situation is further complicated if that state does not permit a guardian to sign the ward into the hospital. In these cases, the ward must meet involuntary hospitalization criteria in order to be hospitalized.
Types of Guardianship
Partial (Limited) Guardianship
In a limited guardianship the guardian assumes final decision-making authority for rights specifically specified by a court order. The person who is subject to the guardianship (referred to as the incapacitated person or the ward) keeps all other decision-making rights not specifically enumerated in a court order.
Full (Plenary) Guardianship
In a plenary guardianship, the guardian assumes final decision-making authority for all rights listed in Washington law (see RCW 11.92.040, 11.92.043).