Petitioning for Guardianship of an Incapacitated Person

Petitioning for Guardianship of an Incapacitated Person

Guardianship Incapacitated PersonIn a guardianship, the responsibility of caring for a person who is not capable of caring for him or herself, and protecting their assets for their benefit, is a very important role.

In Washington, anyone can file a petition for guardianship of someone who appears to be incapacitated.  Relatives, caregivers, and health care providers are often petitioners for guardianship.

The petitioner for guardianship can ask to be appointed guardian or can propose that someone else be appointed guardian.

The process can be completed in 60 days but can take longer.

  1. The petitioner files a petition to appoint guardian along with a notice to the person who is alleged to be incapacitated and a proposed order appointing guardian ad litem.
  2. The Court appoints a Guardian ad Litem. The Guardian ad Litem is an investigator, recommender and report writer.
  3. The Guardian ad Litem goes first to meet with the person alleged to be in need of a guardian. The GAL interviews people including family and caregivers, reviews assets, and obtain a current medical report. The guardian ad litem may also arrange for an attorney to represent the alleged incapacitated person.
  4. The GAL writes a report. The report discusses whether the alleged incapacitated person needs a guardian, who should be the guardian, whether there are alternatives to guardianship.  The report and the medical report are filed under seal (confidentially) with the Court and distributed to persons entitled to copies. A public version of the GAL report is sent to other persons.  The alleged incapacitated person and other family members can file a response to the report, agreeing or disagreeing.
  5. When the guardian ad litem and medical report have been filed, the Court holds a hearing on the petition. The Court considers the GAL report and usually adopts the GAL recommendations.  An alleged incapacitated person may request a full hearing, including on rare occasions a jury trial to dispute the petition.  Usually a guardian is appointed unless another safe alternative, such as a power of attorney or appointment of a representative payee can be found to protect someone.

Once a Guardian is Appointed

It is the responsibility of the Superior Court to oversee all guardianships and to make certain that they are functioning in the best interests of an incapacitated person. An incapacitated person is one who has had a guardian appointed. This person is also often referred to as a ward.   The court must review periodic reports and accountings that the guardian is required to file.

If a guardian is appointed, the Court monitors their actions.  Guardians must report to the court periodically.  A guardianship, once established, only ends if the incapacitated person recovers and is no longer incapacitated or passes away.  Guardianship cases can be transferred to other states or countries if the incapacitated person moves.

Guardians may be paid either from the Incapacitated Person’s assets (the estate), or sometimes, through Department of Social and Health Services.  Attorney fees are paid by the petitioner or by the estate or through DSHS.  Guardian ad litems are paid at public expense or from the estate.

There are two basic types of guardians: guardians of the person and guardians of the estate. A guardian may be appointed as one or the other, or both.  The guardian of the person has the responsibility of arranging for the personal affairs of the incapacitated person, such as food, clothing, shelter, and medical decisions.  The guardian of the estate manages the assets of the incapacitated person.

After being appointed guardian, the guardian must keep the court advised on their current address and that of the incapacitated person anytime there is a change.

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