By: Matt Luedke
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5 Important Questions About Guardianship & Conservatorship
What is a Guardianship and a Conservatorship?
A guardian and a conservator advocate for the person’s rights and help maximize that person’s capabilities as little constraints as feasible. A guardian and a conservator may have broad powers and responsibilities to protect the health (guardian) and finances (conservator, guardian to a limited extent) of the individual while balancing those responsibilities with minimizing the negative influence on the individual’s independence.
A court can create a protective arrangement to secure the individual and minimize their loss of independence. Appointing an emergency guardian or conservator may be necessary to meet an urgent need for the person for a short time.
In Washington State, guardianship and conservatorship are legal procedures in Superior Court through which a guardian or a conservator is appointed to manage a person’s legal rights. The individual may need either a guardian or a conservator, or both.
What is the role of a Guardian or Conservator?
A guardian or a conservator is a person, a professional agency, or a corporate fiduciary (such as a nonprofit corporation or bank trust department) appointed by the court to assist and protect someone the court has determined needs assistance in managing their affairs. There are “professional” guardians and conservators in Washington and “lay” guardians and conservators.
What Types of Guardianship are there?
- Partial (Limited) Guardianship and Conservatorship – In a limited guardianship or conservatorship, the guardian or conservator has final decision-making power over specified rights only if authorized by a court order. The person retains all other capacities of self-determination not expressly granted in an order.
- Full (Plenary) Guardianship and Conservatorship – The guardian or conservator has ultimate decision-making power over all rights specified by Washington state law (see RCW 11.130.310 for guardianship and 11.30.420 for conservatorship).
- Emergency Guardianships and Emergency Conservatorships – In emergencies, the court can appoint someone for a specified length of time (up to 60 days). The court will only grant the particular authority required to address the identified emergent needs of the client. An emergency guardian may be appointed to meet an individual’s urgent health and welfare requirements. The court may grant an emergency conservator to assist with the individual’s critical property or financial issues. If required, the court may be asked to extend the term for an emergency guardian or conservator for another 60 days.
What types of people might require a Guardianship or Conservatorship?
Many reasons exist for establishing guardianship or conservatorship. It’s critical to determine which of these routes is the most effective and least intrusive approach to safeguard the individual from harm. Before petitioning for one, or both, of them, other less restrictive options should be investigated, such as whether a protective agreement may be viable.
The following are examples of individuals who could require a guardianship or a conservatorship:
- A child turning 18 with a cognitive disability that prevents them from handling their personal and financial matters.
- Individuals who cannot protect themselves against assault, neglect, or exploitation.
- A person with dementia who can’t live alone.
- A person deemed unfit to handle their finances or otherwise unable to keep up with their obligations.
- A person who is unable to make decisions regarding healthcare.
What should a Guardian or Conservator NOT Do?
A guardian is in charge of choosing, and if necessary, advocating for a safe and suitable living situation for the person. To discharge this responsibility, the guardian must conduct some research and find out what housing choices are accessible in the area.
Depending on the individual’s needs, there will typically be a range of alternatives ranging from independent living in a private home to supported living in an assisted living facility, group housing, or even skilled nursing care. To determine the best residential setting, the guardian must be familiar with the individual’s level of functioning. It will be crucial to understand whether the person requires help with cooking meals, personal hygiene, or managing drugs.
It will be critical to consult with the individual to discover their present preferences. If doing so does not put them in danger, the current desires of the individual should be maintained. The guardian should attempt to figure out what option the dependent would select if they had all of the present information and circumstances but still could make sound judgments. This might be the case if the individual could make good decisions most of their life and express clear viewpoints on the subject. However, it may not always be possible to find this information, such as when an individual has never had decision-making abilities because they were born.
The goal of a guardian is for the individual to live in the least restricting residential setting that is safe and suitable to meet their requirements. Another fundamental principle is that guardians must put the interests of their charges first. Unless it’s not the individual’s current or prior inclination (substituted judgment) or contrary to their best interest (the decision-making criterion if the substituted judgment doesn’t apply), these two basic principles apply.
It might be necessary to relocate the person to a more limiting setting or even a less restrictive one. The objective is to keep the individual as free and independent as possible while keeping them safe from harm.
If your family struggles with questions about being a guardian or conservator, reach out to our experienced attorneys to provide you with a wealth of guidance regarding these critical topics. We can be reached by phone at 509-328-2150 or by email using our contact page.
A new guardianship law was recently passed in Washington for 2022, so if you have outdated documents or it’s been a while since you set up your arrangements, now could be the perfect time to come in for a consultation and get everything in order. We also wrote about guardianship issues regarding aging parents, which you can find here, and an article about children’s guardianship topics.