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
- 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
Alternatives to Guardianship
Because a person subject to guardianship loses many important rights, less restrictive alternatives must be considered prior to establishing a guardianship. Often, if you ask yourself “Why set up a guardianship?” you may find that a less restrictive alternative may provide the protection that is needed.
Options Available Before a Person Becomes Incapacitated
A person capable of making decisions can arrange for someone else to manage finances or personal care decisions in the event incapacity occurs 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 incapacitated 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. 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 is the lack of a protective oversight system. (Guardians, by contrast, must report periodically to the court). Professional guardians 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 Aging/Elder Law and then Guardianships and Powers of Attorney.
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 incapacity occurs. 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, happily married husbands and wives may hold funds belonging to both of them in joint accounts. This allows either spouse to manage the funds without a guardianship if the other spouse becomes incapacitated.
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 him or her.
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 dissolves a marriage, 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, get 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 Aging/Elder law, subcategory Medical and Mental health).
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
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.
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. Check out our Adult Family Homes list.
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. Check out our Adult Family Homes list.
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.
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.
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 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 who cannot make health care decisions by reason of mental incapacity. (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:
- The appointed guardian, if any;
- A person to whom the patient has given a durable power of attorney that specifically grants authority to make health care decisions;
- The patient’s spouse or state registered domestic partner;
- Children of the patient who are at least age eighteen;
- Parents of the patient;
- Adult brothers and sisters of the patient.
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 an incapacitated person 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. 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 is not needed to manage these funds. Agencies may refuse to allow a guardian 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 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 are used only for the benefit of the IIM account holder. If there is no appropriate, available person to serve as guardian 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 an incapacitated Native American 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. 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 was 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.