Guardianship in Seattle, Washington

Guardianship is a legal process where a person is appointed to make legal, financial, and even medical decisions for another person, usually a vulnerable individual like a child or a disabled individual. In Seattle, Washington, there are minor guardianships and adult guardianships. In this article, we’ll explore these different types of guardianships, situations where family might seek a guardianship, and how divorce and child custody cases can sometimes result in the need for a guardianship or guardian ad litem. Because guardianship involves a process where the court appoints someone to make legal, financial, or medical decisions for a vulnerable individual, or appoints a person to make custody recommendations, it is also important to consider how the court makes these determinations of vulnerability and the need for guardians.

At what point is an adult deemed incapable of making their own decisions, resulting in the need for the court to appoint a guardian? At what point are parents deemed incapable of making decisions on behalf of their children, resulting in the necessity of a court-appointed minor guardianship? At what point in a divorce case does the court determine a Guardian ad litem is necessary?

Guardianship cases involve questions about the right of an individual to make legal, financial, and medical decisions on his or her own behalf, and involve questions about the right of parents and family to make personal decisions for their children. Here are the topics we will explore in greater depth:

1. Who Can Be Put Under a Guardianship and Under What Circumstances?
2. Minor Guardianship
3. Termination of Parental Rights
4. Guardian Ad Litem
5. Guardian Ad Litem and Divorce
6. Legal Guardians and Divorce
7. Adult Guardianship

Who Can Be Put Under a Guardianship and Under What Circumstances?

On January 1, 2022 a new adult guardianship, conservatorship, and protective arrangement law was put into effect in Washington state. According to the Washington Courts General Information Sheet on the new guardianship law, “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.” According to the new law, if a family or another concerned individual wants to create an adult guardianship, they must show the court the following:

1. That the adult in question cannot meet basic needs (physical health, safety, self-care).
2. That the adult (even with support or other aids), cannot make decisions or communicate decisions.
3. There is a significant risk that the adult will be harmed if there is no guardianship is in place.

These qualifications alone are also not sufficient. According to the Washington Courts General Information Sheet, “the court must consider whether less restrictive alternatives” could work in the place of a guardianship.

Less restrictive alternatives can include a power of attorney, a supported decision-making arrangement, or a conservatorship.

• Supported Decision-Making. With a supported decision-making arrangement, vulnerable individuals agree to have a supportive individual (this could be a family member or friend) assist them with decision-making and with communicating decisions.
• Power of Attorney. A power of attorney is a situation where a person grants another person the power to make certain decisions on their behalf. Usually, the power of decision-making is limited to certain decisions, like financial decisions, or medical decisions.
• Protective Arrangement. A less restrictive option to guardianship is a protective arrangement. Under a protective arrangement, only specific aspects of an individual’s decision-making are restricted. This could include a protective arrangement that only concerns questions about a person’s medical care, financial arrangements, visitation, or contact with certain individuals that pose a risk to the adult.
• A conservatorship is another type of arrangement, where a person is appointed to make financial decisions on behalf of a vulnerable adult. Conservatorship arrangements are more common in cases of elder law, or cases where an individual has dementia or Alzheimer’s and appoints a family member, lawyer, or other trusted individual to manage their financial affairs when they are no longer able to do so. A conservatorship could also be appointed for a minor who inherits money or assets before he or she comes of age.

So, who can be put under a guardianship in Seattle, Washington?

• A minor without a legal parent (children aged 12-17 may have a say in minor guardianship cases)
• An elderly person whose mental or physical health has declined so significantly that he or she qualifies for guardianship under the court
• A disabled individual whose mental or physical health qualifies him or her for guardianship under the court
• A person with mental illness or intellectual disability who qualifies for guardianship under the court

Because guardianship can take away an individual or parent’s fundamental freedoms, there are strict standards that must be met before a guardianship can be approved.

Next, we’ll explore the differences between minor guardianship and adult guardianship situations.

Minor Guardianship in Seattle, Washington

In the cases of a minor guardianship, the question of parental rights becomes central. Either both parents must have willingly given up their parental rights, or the courts must have terminated parental rights. The termination of parental rights is itself a complicated area of the law.

Normally, the court looks to parents to make legal, financial, and medical decisions for their children. In the case of a minor guardianship, the parent is unavailable to make these decisions, so another person is appointed.

When parental rights have been terminated, either because the parents willingly gave up their parental rights, or because the court terminated parental rights, or because no parent is able or willing to exercise their parental rights, then the court may appoint a minor guardian to perform parental functions, like making financial, legal, or medical decisions on behalf of a child. The minor guardian would also be responsible for providing support, education, and care for the minor’s health and safety.

There are two types of minor guardianship cases: emergency minor guardianship and minor guardianship. A minor guardianship case can take approximately 60 days to finalize, and sometimes concerned family members (like, say a grandparent) or social workers need to take swifter action and file an emergency guardianship case. An emergency minor guardianship case and minor guardianship case can be filed simultaneously.

Children who are between the ages of 12 and 17 may have a say in their minor guardianship case. When an emergency minor guardianship or minor guardianship has been filed, the papers must be served to the child if the child is between the ages of 12 and 17.

There are situations where a minor who is between the ages of 12 and 17 can petition the court for their own guardianship. For example, if the parent of a child is deployed or incarcerated, and the child wants to live with a grandparent, a friend of the family, or other relative, the child may be able to ask the court to be placed under the guardianship of a specific individual. If the parent is being deployed or going to prison, he or she may be able to give a relative, friend, or family member power of attorney over a minor child, or the relative, friend, or family member could file for minor guardianship themselves.

A minor could also seek emancipation so that they don’t need to have a minor guardian appointed.

Termination of Parental Rights

The termination of parental rights is not something the courts take lightly. According to the Washington Courts Family and Youth Justice Programs, the termination of parental rights involves “the difficult task of balancing two compelling interests: a parent’s fundamental liberty” and “the state’s obligation to protect the health and safety of children.” The goal in most cases is to keep parents with their children. Or, to offer support to parents for them to gain the skills to become “fit” parents to their children.

Yet, when parental rights conflict with the safety of a child, then the courts will put the child’s safety first. The standard for the termination of parental rights is high. According to the Washington Courts, parental unfitness must be proven with “clear, cogent, and convincing evidence or beyond a reasonable doubt.” Courts typically follow specific steps under RCW 13.34.180(1). The steps include:

• Determining that the child is dependent. In some cases, if a child is 16 years old or takes a living skills program, the child could potentially be emancipated and become their own guardian.
• The child has already been temporarily removed from the home for at least 6 months, total before the termination case is held. It doesn’t have to be a continuous 6 months.
• The child’s legal parents have been offered services to help them become fit parents and to remedy the initial issue that resulted in the child being removed from the home. (For example, the parents have been offered alcohol or drug treatment programs if they have a drug or alcohol problem.)
• There is evidence that the issue that resulted in the child being removed from the home won’t change. For example, repeated failed drug or alcohol treatment attempts, or unwillingness of the parent to attend drug and alcohol treatment programs. Or, a psychological condition that is resistant to treatment. Mental illness alone or a drug or alcohol issue alone isn’t grounds for termination of parental rights. The court must show that the issue makes the parent unfit, and that the state of unfitness shall continue.
• If the child isn’t placed in a permanent home now, there is a risk that the child won’t find a permanent home in the future.

In some cases, termination of parental rights can occur before the six-month period if services have already been offered to the parent to remedy the situation and there is sufficient evidence to prove that the situation will not change. Abandonment of the child is another situation where termination of parental rights can be sped along.

Criminal history or incarceration alone isn’t grounds to terminate parental rights, though the courts might consider the kind of crime committed, when the crime was committed, and the type of victim.

Finally, it is possible for the court to terminate one parent’s rights without affecting the rights of the other parent.

Guardian Ad Litem

In the case of termination of parental rights, or in the case of a contentious divorce, a minor child may not be able to speak up for their own interests in the case. In these instances, the court appoints an adult to represent the best interests of the child. This person is known as a Guardian ad litem. The role of the Guardian ad litem is to take the time to review the divorce case, speak to the child, the parents, and to other relevant parties, and to represent the child’s best interests in a contentious divorce or termination of parental rights case.

It is important to note that a Guardian ad litem is not the child’s legal counsel or lawyer.

Guardian Ad Litem and Divorce

In general, divorcing couples are encouraged to develop their parenting plan and to make custody decisions with the help of their lawyers or through the mediation process. When parents cannot resolve these issues through the assistance of divorce lawyers or a mediator, the courts may appoint a Guardian ad litem to the case.

The Guardian ad litem may perform a home visit and may interview both parents and the child in order to make recommendations to the court. The Guardian ad litem may also interview other parties, including the child’s teachers, or other people who interact with the child. While the Guardian ad litem may consider what the child wants in terms of custody, the Guardian ad litem doesn’t have to make final decisions based on the child’s wishes. Ultimately, the Guardian ad litem will make recommendations to the court based on what he or she determines is in the best interests of the child. Ultimately, the judge will make the final decision, but the Guardian ad litem is an important voice in the case.

When a Guardian ad litem gets appointed to a divorce case, there is always the risk that the Guardian ad litem will make a recommendation that neither parent wants. And there is always a risk that the judge will decide in favor of what the Guardian ad litem recommends. This is why many divorce lawyers will encourage divorcing couples to try to resolve their parenting issues outside of court or through mediation. In some cases, the Guardian ad litem’s recommendations send both parents back to the negotiating table, drawing out the divorce process even more.

When a Guardian ad litem is ordered by a judge, the parents must pay for the Guardian ad litem’s services.

The best way to avoid the appointment of a Guardian ad litem to your divorce case is to try to develop your parenting plan outside of court or with the assistance of a mediator. Collaborative divorce is another excellent way to potentially avoid a court appointment of a Guardian ad litem, because collaborative divorce avoids going to court altogether.

If you’re looking for an amicable solution to your child custody questions, Truce Law is a divorce law firm in Seattle, Washington that handles a wide range of custody issues, guardianship issues, and helps families find peaceful resolutions to their divorces.

Legal Guardians and Divorce

People often confuse legal terminology regarding “guardianship” “legal guardian” and “custody” when it comes to divorce. There is a difference between legal guardianship of a child and custody. In most divorce cases, both parents retain legal guardianship of their children. This means that in most divorce cases, both parents retain their parental rights to make decisions for their children. The point in question with most divorce cases is where the children will live, and how visitation will be arranged. This is a question of custody. In general, as noted above, there is a high burden of proof to terminate parental rights or a parent’s right to be a legal guardian of his or her child.

If you’re going through a divorce, your parenting plan will often outline how you and your former spouse will navigate conflict when you disagree about certain decisions regarding your shared legal guardianship, and how you plan to delegate decision-making roles. You’ll also make decisions about custody—where the children will live, with whom, and how visitation will be arranged.

The vast majority of divorce parenting plans don’t address questions of guardianship but involve questions of custody and how decisions for the children will be made.

Adult Guardianship

Adult guardianship is a legal process where another adult is made legally responsible for the decision-making, care, and well-being of vulnerable adults. Under Washington law each guardianship situation can be tailored to the abilities of the individual to preserve the greatest autonomy and freedom possible, while also protecting the person’s health, safety, and finances.

An adult guardian has a fiduciary duty to their “ward” or the person under the guardianship. A fiduciary duty is a legal responsibility to always act in the best interest of the ward.

During the court case to establish the guardianship, the court will determine the extent of the guardianship, and what decisions the guardian will be responsible for.

An adult guardianship case is not something the courts take lightly because if a guardianship is established, an adult may lose certain rights. The questions at stake in an adult guardianship case can include whether a person under a guardianship can marry or divorce, vote, enter into contracts, obtain a driver’s license, own, buy, or sell property, make medical decisions, or make decisions about their own care. Generally, the courts don’t restrict personal liberties to this extent until other remedies for the person’s wellbeing, health, safety, and finances have been considered.

Next Steps

If you are going through a divorce and are looking for a peaceful way to draft a parenting plan (without the need for a Guardian ad litem), you may want to reach out to Truce Law. Our collaborative divorce lawyers in Seattle, Washington may be able to help you find a peaceful way through this process, without the need to go to court.

We also help parents with disabled children or family members advocate for the rights of their loved ones through guardianship. Our law firm also offers services to help individuals with estate planning, which can also raise issues of guardianship.