Guardianship/Conservatorship for Adults

 Because of incapacity, certain individuals are not able to handle their own affairs. The individual appointed to manage those affairs is referred to as the "guardian," or depending on the facts of the case and the needs involved, the "conservator." Our Spokane guardianship/conservatorship attorneys can provide legal services to those asking for guardianship of incapacitated persons.

This is often a complex area of the law that generates many questions. Since we're always here to help, please find the answers to our most frequently asked questions below.

Adult Guardianship:

•  When may a court appoint a guardian for an adult?  A court may appoint a guardian for an adult when the adult is unable to meet their basic needs for physical health, safety, or self-care. The court would have to determine that the adult is unable to receive and evaluate information or make or communicate decisions, even with support or assistance. There must be a significant risk of harm to the adult unless a guardian is appointed. If the adult's needs can be met in other ways, the court may not appoint a guardian. 
•  What other options must be considered before a court may appoint a guardian for an adult?  The court must consider whether less restrictive alternatives, including a protective arrangement, would be sufficient to meet the adult's needs. 
•  What are less restrictive alternatives and protective arrangements?  Less restrictive alternatives are ways of meeting the adult's needs without having to appoint a guardian. Options might include: a power of attorney, technological assistance, or supported decision making, including a supported decision making agreement, for example. A protective arrangement is a court ordered arrangement that may meet the adult's needs instead of a guardianship. 
• What should be considered regarding whether a less restrictive alternative or protective arrangement would meet an adult's needs?  It depends on the individual circumstances of the adult. Considerations include the adult's abilities, prior arrangements, availability of other options, and available supports in the adult's life. 

Adult Conservatorship:

•  What is a conservator? A conservator is someone who is appointed by the court to make decisions about finances and property on behalf of an individual. 
•  When may a court appoint a conservator for an adult? A court may appoint a conservator for an adult when the adult is unable to manage their property or financial affairs. One circumstance is if the adult is unable to receive and evaluate information or make or communicate decisions, even with support or assistance. Another reason may be if the adult is missing, detained, or unable to return to the United States. There must be a significant risk of harm to the adult or their property unless a conservator is appointed. Another possibility is if a conservator is needed to
  obtain or provide funds or other property for the adult's support, care, education, health, or welfare. A conservator may also be needed to obtain or provide funds for the adult's legal dependents (such as minor children). Just as in guardianship, if the adult's needs can be met by a less restrictive alternative or protective arrangement, the court may not appoint a conservator. 
•  What may be a less restrictive alternative to a conservatorship? Examples may include a power or attorney for finances, a representative payee-ship, or a trust. Depending on the circumstances of the individual, supported decision making, including a supported decision making agreement that covers assistance with financial decisions, might be appropriate. 
•  What are examples of protective arrangements instead of a conservatorship?
  If appropriate, the court may order a protective arrangement that may include:
  - An action to establish eligibility for benefits
  - Paying, delivering, depositing, or retaining funds or other property
  - Sale, mortgage, lease, or other transfer of property
  - Purchase of an annuity
  - A contract such as one to provide for personal care, supportive services, education,  training, or employment
  -Adding to or setting up a trust
  - Ratifying (confirming) or invalidating (canceling) a contract, trust, will, or other transaction, including a transaction related to the property or business affairs of the respondent
  - Settlement of a claim
  - Restricting access to the adult's property by a specific person if that person's access puts the adult at serious risk of financial harm. 

General Questions About Guardianship and Conservatorship

•  May someone be appointed as both the guardian and the conservator for an individual? Yes. The same person can be appointed as both guardian and conservator for an individual. 
•  What if the guardian and the conservator are different people? Guardians and conservators both have a fiduciary duty to the individual subject to guardianship/conservatorship. That means that they must act in the individual's best interest. Guardians and conservators have a duty to consult and cooperate with each other, and other fiduciaries if applicable (such as someone appointed under a power of attorney). 
•  How does a guardian or conservator show their authority to act on behalf of the individual? The guardian or conservator may be issued Letters of Guardianship/Conservatorship once appointed by the court and upon satisfying the requirements of the law. This includes filing an Acceptance of Appointment. There may be a requirement to file a bond or comply with a verified receipt of funds by a financial institution requirement, for example. Out of state guardians and conservators must appoint a resident agent in Washington.
•  What's the difference between full and limited guardianships and conservatorships? A guardianship or a conservatorship may be either full or limited. A full guardianship or conservatorship authorizes the guardian or conservator to
  exercise all authority available under the law. A limited guardianship or conservatorship authorizes the guardian or conservator to exercise only the
  authority that is granted in the order appointing them. 
•  Does a guardian or conservator have to meet any requirements? Yes. There are age requirements. Generally, the minimum is age 21 in most cases (18 if a parent). Certain criminal convictions are disqualifying. Generally, if a person is 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, they are disqualified. The court may make an exception for a relative based on the facts of the case. There may be other reasons why the court may find that a person is not be suitable for appointment. 
•  Does a guardian or conservator have to disclose information to the court
  before being appointed? Yes. Someone who wants to be appointed must disclose their criminal history, bankruptcies and other required information.
• Does a guardian have any financial authority or duties? Depending on the case, a guardian may have authority over certain property and finances of the individual. If the guardian has been given that authority by the court, the guardian will have a duty to spend funds for the individual's care and support. Whether or not a guardian has authority over any finances may depend on whether a conservator has been appointed or whether there is a power of attorney for finances in effect, for example.
• May a guardian or conservator charge fees for their services? Yes, but all fees must be approved by the court before being paid. Any fees charged must also be reasonable and cost-efficient. A guardian or conservator may not charge above market rates for the service performed.
• Does a guardian or conservator have to name someone to take over their role as guardian or conservator if they are unable to serve? A guardian or conservator does not have to nominate someone to take over if they are unable to continue. Identifying a successor guardian or conservator may be a good idea to best provide for the individual's needs if the guardian or conservator is not able to serve for some reason. Another option is appointing a co-guardian or co-conservator who may have authority to act jointly, or only upon an event happening.
• How long does the guardian or conservator appointment last? A guardian or conservator appointment lasts until the guardianship or conservatorship is ended, the court approves the resignation of the guardian or conservator, the guardian or conservator is removed, or the guardian or conservator dies. The guardian or conservator must ask the court to approve a resignation.
• Can a person subject to guardianship/conservatorship have the guardianship/conservatorship modified (changed) or terminated (ended)?
  The individual has the right to ask the court to limit or end a guardianship or
  conservatorship at any time. A guardian or conservator has a specific duty to
  promote the individual's self-determination and decision making, and assist the individual in regaining the right to make their own decisions if able.