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minor guardianship is one of the many guardianship types

Guardianship Types

The Guardianship Types

There are two main adult guardianship types (guardian of the person and guardian of the estate). Minor guardianship is another type of guardianship which involves the care of a minor child.

In adult guardianship, a person could be appointed by the court to act as the guardian of the person, in which case, the guardian would have the responsibility to oversee a person’s living situation, medical decisions, and decisions relating to end-of-life care, education, and counseling.

When the court appoints a person to serve as guardian of the estate or property of a ward (the person who is put under the guardianship), the guardian would have the responsibility to oversee and protect the assets and property of the ward, manage the ward’s income and estate, and obtain court approval to sell assets. A guardian of a person’s estate has a fiduciary duty to act in the best interests of the ward. This means that the guardian cannot use the estate to enrich themselves but must make decisions that serve the best financial interests of the ward. A guardian of an estate can receive payment for their services but must manage the estate with the ward’s interests in mind.

A minor guardianship is a legal arrangement where parents appoint a trusted friend or family member to serve in a parental role, or where the court appoints an individual to serve in the parental role when the parent is no longer able to do so. It is important to distinguish between custody and minor guardianship. When parents’ divorce or separate, guardianship isn’t in question (both parents generally remain the legal guardians of their children after divorce, meaning that both parents continue to have the right to make decisions on behalf of their children and retain the shared responsibility of financial, educational, and emotional care).

In divorce or separation, custody is the main legal question, which is distinct from the legal concept of minor guardianship. Custody refers to where the child will primarily reside, and how parents plan to split parenting time with the child or children. Minor guardianship, on the other hand, is a legal arrangement where extended family, friends, or another adult becomes responsible for caring for a child financially and physically, usually because a child’s parents are either temporarily or permanently unable to care for their children.

In this article, we’ll explore the unique situations that can lead to a minor guardianship, special needs guardianships, and other adult guardianship situations related to mental illness, dementia, Alzheimer’s, or age.

In this article, we’ll explore various guardianship situations:

Legal Guardianship of Minors

According to the U.S. Department of Health & Human Services’ Office of the Administration for Children and Families, legal guardianship allows parents to appoint a person of their choice to serve as a legal guardian of a minor child (someone who is under 18 years of age). According to King County courts, there are three situations where the court can appoint a minor guardian: (1) the parent agrees to the guardianship and appoints a guardian; (2) “there is clear and convincing evidence that no parent of the minor is willing or able to exercise parenting functions;” (3) or parental rights are terminated.

In many instances with legal guardianship, parental rights aren’t terminated, but the legal guardian appointed to care for the child will have the right to make decisions about the child’s education, care, discipline, medical care, and more. Parents may sometimes appoint a family member or trusted friend to serve as a child’s legal guardian in situations where the parent may temporarily (or permanently) not be able to perform parental duties. Some examples include:

  • Parental Illness: For example, a parent may be seeking treatment for cancer, major surgery for a medical condition, or seeking substance abuse treatment and may need to appoint a family member or friend to serve as a legal guardian while the parent seeks treatment.
  • Incarceration: If a parent is being incarcerated and doesn’t want the child to enter the foster care system, the parent can appoint a trusted friend or family member to serve as the child’s legal guardian while he or she is incarcerated.
  • Military Deployment: If a parent is being deployed, the parent could appoint a trusted family member or friend to serve as their child’s legal guardian.
  • Death: Some parents create provisions in their will as part of their estate planning, specifying which friend or family member they would want to serve as their child’s legal guardian should they pass away.
  • Termination of Parental Rights. Termination of parental rights can generally only occur if the child has already been removed from the home for at least six months. The state must show that it has provided services to help a parent correct “parental deficiencies.” If the state can show through clear, cogent, and convincing evidence that the situation will not be corrected in a manner that would allow the child to be returned home, termination of parental rights might be sought. Situations like a parent’s criminal history, mental disorder, substance abuse disorder, or if the parent can’t nurture the child, or provide for the child’s physical mental health, and safety, could result in the child’s removal from the home or termination of parental rights, according to the Washington Courts Family and Youth Justice Programs.

If a minor guardianship is being ordered by the court against a parent’s will, the court must prove, with clear and convincing evidence that no parent can perform parental functions as defined by RCW 26.09.004. Parenting functions include:

    • Having a stable, loving, and nurturing relationship with the child.
    • Caring for a child’s daily needs: including feeding, clothing, and health care.
    • Ensuring that the child receives an appropriate education.
    • Helping the child foster relationships.
    • Financially supporting the child.

Appointing a minor guardian or removing a child from the home is a serious matter that the courts do not take lightly. Before a child can be permanently removed, the state must generally show that services were provided to a parent to help them. Poverty alone isn’t reason to remove a child from a home. Social services are often offered to increase access to health care, housing, food, clothing, substance abuse treatment, domestic violence support services and more, before a permanent guardianship is sought or before parental rights are terminated.

Special Needs Guardianship & Mental Illness Guardianships

Parents may seek guardianship of a minor who is turning 18 if the minor has special needs and will need ongoing care and assistance with daily living tasks and basic needs. It is important to note that not every person with disabilities will require a guardianship. A guardianship can significantly limit a disabled person’s freedom and autonomy. For example, a guardianship could result in a person losing the right to marry or divorce; vote; sign contracts; get a driver’s license; buy, sell, or rent property; make medical decisions; and make decisions about their own care.

According to the National Alliance on Mental Illness, Washington’s guardianship law specifically notes the following: “It is the intent of the legislature to protect the liberty and autonomy of all people of this state, and to enable them to exercise their rights under the law to the maximum extent, consistent with the capacity of each person.” That said, the courts do acknowledge “that some people with incapacities cannot exercise their rights or provide for their basic needs without the help of a guardian.” When a guardianship is appointed due to disability or due to mental illness, the guardianship should be limited to the extent that it protects a person’s health, safety, or finances. Because guardianships limit a person’s freedom and autonomy, the courts do not take these cases lightly.

To seek a special needs guardianship or mental illness guardianship, the person seeking the guardianship must be able to show that the person has a “demonstrated inability to adequately manage property or financial affairs” or “demonstrated inability to adequately provide for nutrition, health, housing, or physical safety” under RCW 11.88.010.

Parents may seek a full guardianship or partial guardianship, depending on the needs of the child turning 18, or adult child who has a mental illness diagnosis.

Going to court to seek a guardianship for your child can be costly, time-consuming, and difficult to undo once it is in place. It can also raise issues of human rights, civil rights, and disability rights, so parents should carefully consider alternatives or speak to a Seattle, Washington guardianship lawyer before moving forward.

Fortunately, there are many alternatives to adult guardianship, and later in this article, we’ll explore those alternatives.

Guardianships for Alzheimer’s, Dementia, or Elderly Individuals

A guardianship for Alzheimer’s, dementia, or for an elderly individual is a last-resort option when a person diagnosed with Alzheimer’s or dementia has failed to make estate or end-of-life plans for their progressive illness. Elderly individuals who have failed to make plans for failing health conditions could also find themselves or their families in a situation where a guardianship might be needed.

If you have been diagnosed with Alzheimer’s or dementia, or a parent has been diagnosed with Alzheimer’s or dementia, the need for guardianship or a lengthy court process can be avoided with proper estate planning and end-of-life planning.

According to the Alzheimer’s Foundation of America, a guardianship often must be initiated when a person doesn’t have other end-of-life or estate planning safeguards in place. Any person with an interest in the person’s well-being can initiate a guardianship: family member, care facility, or friend. Yet, a guardianship case can take months or even years to be finalized.

Guardianship is an extreme solution resulting from a failure of estate planning or end-of-life planning. If you have been diagnosed with Alzheimer’s, dementia, or are concerned about growing older and how your affairs will be managed as you age, you may want to speak to an estate planning lawyer or elder lawyer as soon as possible. An estate planning lawyer in Seattle, Washington can help you and your family avoid the guardianship process.

Alternatives to Guardianship (Special Needs or Mental Illness Guardianship)

If you are considering seeking a special needs guardianship for a disabled child turning 18 or for a child who has been diagnosed with a serious mental illness or disability, you may want to consider alternatives to guardianship. Guardianship can have major civil rights, human rights, and disability rights implications for your child. Here are some alternatives you may want to consider:

  • Current Legal Protections. If you are concerned about your child’s ability to make medical or health care decisions due to incapacity or due to inability, the law already has provisions in place to protect individuals in these situations. For example, Washington law allows parents to make medical or health care decisions for their adult children if the children are incapacitated or unable to make decisions themselves. In this situation, the courts will first turn to a spouse, the person’s adult children, the person’s parents, adult brothers or sisters, and extended family.
  • Power of Attorney. A power of attorney specifically gives a trusted person or parent the ability to make health care decisions or financial decisions on behalf of another person. Unlike a guardianship, which can affect a person’s autonomy and right to make all kinds of decisions, a power of attorney is limited in scope to certain situations and decision-making capacities. For example, you can have a durable power of attorney for finances or durable power of attorney for health care. Within these documents, individuals can make their medical wishes clear, and outline what kind of financial decision-making powers they are turning over (for example, ability to make changes to a trust, change property agreements, and giving authority to other individuals).
  • Supported Decision-Making Agreements. With supported decision-making agreements, a person with a disability appoints a trusted family member or friend to help them make decisions and to communicate these decisions to doctors, financial institutions, and others. Supported decision-making may involve the use of assistive technology, extra time to make choices, role-playing, or conversations to help the individual understand options and consequences. With supported decision-making, the individual with disabilities makes all decisions but specifies how they need and want assistance. Supported decision-making gives individuals with disabilities independence, protects individual rights, is flexible, and doesn’t require a lengthy court or legal process (as is needed with a guardianship). In some cases, supported decision-making agreements are made in conjunction with a durable power of attorney and health care directives (or a living will).
  • Representative Payee. If your child receives benefits from the Social Security Administration or Veterans Administration, you could be appointed a representative payee to manage these benefits. You don’t need to be a guardian to become a representative payee.

Alternatives to Guardianships for Alzheimer’s, Dementia, or Age

Proper estate planning is the best alternative to guardianship for people who have been diagnosed with Alzheimer’s, dementia, or for individuals who are growing older and who are concerned about how major medical decisions or financial decisions would be made should they become too ill to make these decisions on their own behalf.

According to the Washington State Office of the Attorney General, there are two main ways you can make your medical wishes known to family, and appoint a trusted person to handle your medical decisions should you become unable to do so. These provisions include:

  • Health Care Directive (Living Will)
  • Durable Power of Attorney for Health Care

A health care directive or living will is a document that allows you to make your wishes regarding medical treatment known to family and loved ones and offers guidance to doctors, family, and friends about your medical care should you become incapacitated or unable to make medical decisions. A health care directive will only come into effect if a doctor determines that you have a terminal health condition, and two doctors confirm that you are unconscious and unable to make health care decisions on your own behalf. A health care directive or living will must be made in advance, when you are “of sound mind” and it must be witnessed by two individuals who are unrelated to you and who will not inherit anything from you.

A durable power of attorney gives you the ability to appoint someone else to make medical decisions on your behalf. Unlike a living will, you get to decide when the durable power of attorney goes into effect.

Another issue that can arise involves financial decision-making should you become too ill or incapacitated. There are several options you may have to ensure that someone you trust can manage your financial affairs without the need for a guardianship. This can include establishing a trust or creating a financial durable power of attorney.

In general, good estate planning and end-of-life planning can avoid the need for your family to go through a costly and time-consuming guardianship.

Next Steps

If you have questions about guardianship, minor guardianship, special needs guardianship, elder guardianships, or alternatives, Truce Law provides guardianship and estate planning services in Seattle, Washington. We are here to guide you through the various options available and help you find solutions that work best for your family and your needs. When it comes to estate planning and guardianship, peace of mind is everything and is priceless. Discussing end-of-life and estate planning matters can sometimes be difficult. Truce Law works with families to offer peaceful solutions to some of the most difficult family law concerns.147

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