Guardianships in Washington — What are they? What is changing?
***If you are looking for information on minor guardianship in Washington, please see our more recent Minor Guardianship in Washington — A New Approach post.***
Guardianship is a legal tool used to address situations where a ward needs someone to protect them, like a parent protecting a child. One situation where guardianships are used is when a child needs someone to step into the parental role due to the death, imprisonment, or incapacity of their parents. These guardians are often a trusted relative or close friend and are an alternative to a child entering the foster care system.
The more complicated use of guardians is for adults who are incapacitated due to physical or mental disease. This tool can be a critical resource for protecting a young adult with a profound disability or an elder with dementia, but it can also be abused as it strips the adult of the power to make some or all decisions about their lives. Conservators are similar to guardians but are focused solely on the property of the ward. Both guardianships and conservatorships are more extensive and powerful than the powers of attorney under Washington’s Uniform Power of Attorney Act. Because these laws impact a person’s freedom the person who is seeking to impose a guardianship or conservatorship on an adult must prove to the court by clear and convincing evidence that they are unable to manage their own affairs and that a less restrictive alternative is unavailable. These hearings are private and the court records are sealed.
More information about guardianship creation can be found at WashingtonLawHelp.
There are many news stories about guardianship abuse. Disability Rights Washington has released information about how to avoid some potential pitfalls of guardianship. To address this problem, the Legislature passed an amendment in 2020 clarifying the process for appointment of an emergency guardian, amending the new RCW 11.130.320 to allow for a 60 day appointment designed to meet the immediate needs of the ward without rushing to create a permanent guardianship.
The statute was amended to require that court orders appointing emergency guardians “[g]rant only the specific powers necessary to meet the adult’s identified emergency need and to prevent substantial and irreparable harm to the adult’s physical health, safety, or welfare.” Orders must also include specific findings as to the existence of an emergency whereby appointment of an emergency guardian will prevent harm to the adult’s welfare. Other requirements include a specific finding that the needs of the adult cannot be met by other alternatives and a finding that they were given proper notice of the guardianship hearing. These required findings for an emergency guardianship may start to address the problem of guardianship abuse.
In 2019 Washington overhauled its guardianship laws when it became the second state to adopt the Uniform Guardianship, Conservatorship, and other Protective Arrangements Act (UGCOPAA), codified at RCW 11.130. Parts of the UGCOPAA go into effect on January 1, 2021. 2020 statutory amendments made a number of changes to the UGCOPAA to ensure the rights of the alleged incapacitated person. The adult guardianship changes described here go into effect on January 1, 2022. The old guardianship statutes, at RCW 11.88, remain in effect until January 1, 2022.
The courts, through the Administrative Office of the Courts, have created a Guardianship Portal which is designed to help families understand guardianship and find professional guardians. Portal information about the laws that go into effect in 2022 can be found here.(RM)
