Guardianships

What is a guardianship?

A guardianship is a court proceeding where an individual or agency is appointed by the court to make medical and financial decisions for an individual who is not capable of making those decisions.

Who needs a guardianship?

Guardianships generally fall into three categories:

  1. Minors who have no living parent able to make medical and financial decisions on behalf of the minor;
  2. Individuals who become disabled due to advanced age or dementia; and
  3. Individuals who were born disabled, who have turned 18, and whose parents can no longer legally make medical decisions for their child because he/she has attained the age of legal adulthood.

What is the procedure for guardianship?

An individual or agency (often a family member or a nursing home) petitions the court to have a guardian appointed for an individual.  The Alleged Incapacitated Person must be personally served with the Petition, the Notice of Petition and a copy of the Order Appointing a Guardian ad Litem.

What is a Guardian ad Litem?

A Guardian ad Litem (friend in litigation) is an independent investigator (frequently an attorney or a social worker) who is charged with investigating the circumstances, obtaining a medical report, interviewing the alleged incapacitated person, his/her family and caretakers, and making a recommendation to the court.  The Guardian ad Litem is charged with determining the following:

  1. Is the person incapacitated?  Unless the individual is a minor, the finding must be documented by a current medical report.
  2. Is there a less restrictive alternative, and if so what?
  3. If the person does need a guardian, who should be appointed as guardian?
  4. What should be the scope of the guardianship?

What is a less restrictive alternative?

Less restrictive alternatives can be a Power of Attorney, if the individual is capable of understanding and signing the document, and if an individual is willing and able to act as power of attorney.  Other less restrictive alternative include establishing a trust where another person manages funds.  Trusts can be managed either with our without court supervision, depending on the nature of the trust.

How long does it take to have a guardian appointed?

The hearing on the guardianship petition should occur within 60 days of the filing of the petition.  If the hearing cannot be timely held, the parties must request additional time from the court.

What is a Guardian of the Person?

Guardians of the person are authorized to make medical decisions and locate appropriate care facilities for the incapacitated person.

What is a Guardian of the Estate?

Guardians of the estate make all financial decisions, collect all monies due the incapacitated person (such as social security and pension payments) and pay all bills.

What are the reporting requirements?

Guardians are supervised by the superior court of the county where the guardianship is established.  They are required to report at a minimum of every three years.

Who can serve as guardian?

Any individual over the age of 18 can serve as guardian, provided that he/she has no criminal history, no history of fraud or exploitation, and has taken the on line training for lay guardians.  Professional guardians undergo a training program approved by the state of Washington, are licensed by the Certified Professional Guardian Board, and must regularly update their credentials and take ongoing continuing education classes.

What are the advantages of a guardianship?

  1. Once a guardianship is in place, the Incapacitated Person can no longer enter into contracts, thus eliminating the risk of financial exploitation.
  2. One individual is appointed as the decision maker, eliminating conflict among family members as to who should be in control.
  3. All financial transactions are reviewed and approved by the court.

Probate

When a loved one passes away, it is a difficult time for family and friends.  Not only is it an emotional time, but it is also a time when the affairs of the loved one must be settled.

To help you with the legal requirements of settling a loved one’s affairs, you need the advice of an experienced attorney who can review your situation.  Working closely with family members or other parties on behalf of the loved one, the attorneys of Luce Lineberry & Kenney PS can assist you with probate proceedings if needed, or provide you with legal guidance for alternatives to probate.

The Probate Process

The legal process of administering the estate of a deceased person is known as “Probate”.  This involves resolving all claims and distributing the deceased person’s property to the heirs in accordance with the person’s Will, or if there is no Will, in accordance with the intestate statute.  The process is overseen by a Probate court which ensures that everything in done in accordance with State laws and that the estate is distributed correctly.

Under Washington law it is often not required to admit a Will to probate or appoint an Administrator of an estate to settle the affairs and transfer the assets of a loved one who has passed.  If there is a requirement to utilize the probate process to settle an estate, we have experienced counsel who can guide you through this process in the most efficient and cost effective manner.

Alternatives to Probate

In some situations, the formal Probate process is not required.  For example, probate is not required if:

  • there is a surviving spouse and the parties signed a community property agreement
  • the parties had a revocable trust agreement
  • there is no real property in the estate and there are designated beneficiaries on the bank accounts and life insurance policies
  • the property is held with right of survivorship

Our attorneys can assist you with settling the deceased person’s estate properly.  Non-probate services include Notices to creditors, transfer of assets, preparation of court Affidavits if needed, and filing & recording documents as needed.

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