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a discussion about terminating a legal guardianship

Terminating a Legal Guardianship

A family or individual can terminate a guardianship by petitioning the court or by filing a written complaint to terminate the guardianship. A guardianship can also terminate without a court order if a minor under a guardianship turns 18, or if a limited guardianship expires.

There are two main types of guardianships:

(1) Minor guardianships

(2) Adult guardianships

If you are a parent whose children were placed under a minor guardianship, you may want to terminate a guardianship to regain custody of your children.

If you are an adult who was placed under a guardianship due to your disability or incapacity, you may feel that the guardianship is unnecessary and want the guardianship to end. In some instances, with adult guardianship, concerned family members (and sometimes the individual under the guardianship) doesn’t like the way a currently appointed guardian is handling the guardianship and wants to either change the appointed guardian or eliminate the guardianship altogether.

  • Guardianships can be terminated either through petitioning the court (in the case of a minor guardianship) or by filing a written complaint (to terminate an adult guardianship).
  • Guardianships can also terminate without a court order in certain specific situations.

In this article, we’ll explore the ways that guardianships can be terminated, the different circumstances that would warrant the termination of a guardianship, and the steps you can take if you would like a guardianship to end.

Situations Where a Guardianship Can End Without a Court Order

Washington law, RCW 11.88.140 specifies the circumstances where a guardianship can end without a court order. Let’s take a closer look at some of these specific circumstances.

  • A minor guardianship can end without a court order when the minor under the guardianship turns 18.
  • A guardianship can end if the adult or the minor in the guardianship passes away.
  • A limited guardianship can terminate if the guardianship expires without a petition to extend the term of the limited guardianship.

Yet, even when a guardianship can terminate without a court order, certain circumstances can complicate the termination of a guardianship.

For example, when a minor comes of age, additional requirements may need to be met before the guardianship can formally end, especially if the adult was placed in charge of the minor’s inheritance, property, or assets. If a guardian managed a minor’s money, the guardian must transfer these funds to the minor, and the minor will have to sign a receipt that he or she received the funds. This receipt must be filed with the court. The guardian must also show that he or she has properly “completed the administration of the minor’s estate” (for example, to ensure that property and other accounts are properly transferred to the minor). During the administration of the minor’s estate, guardians, lawyers, and accountants may also be paid reasonable fees for performing the services of administering the estate and managing the minor’s funds. If the minor finds these fees reasonable, the guardianship will end thirty days after the estate has been administered and all funds have been transferred. If, however, a minor believes the fees unreasonable, then the minor has the right to petition the court to approve the fees.

In this instance, a minor who is turning 18 who believes a guardian is taking unreasonable fees to administer their estate may want to seek the assistance of a guardianship lawyer in Seattle, Washington to assist them with ensuring that their estate is properly administered and to oversee the payment of reasonable fees. A minor guardian in charge of a minor’s estate has the right to seek reasonable fees for managing and administering the estate and for performing these services. If lawyers are involved or accountants must be hired, these individuals have the right to seek reasonable fees from the estate. Issues can arise if a minor under a guardianship believes the guardian’s fees were unreasonable or believes the amount of money the guardian claims as payment to be unreasonable. A minor guardian has a fiduciary duty to act in the best interest of the minor, and if the minor believes the guardian has failed to honor his or her fiduciary duty, the minor can petition the court to review fees and to review the administration of the estate.

Finally, because a minor guardianship ends when a child turns 18, if a child is disabled, parents may need to seek an adult guardianship or alternatives to guardianship (durable power of attorney for finances, living trusts, joint bank accounts, joint property arrangements, or supported decision-making arrangements) to ensure that a disabled child continues to receive the care and support he or she needs. In these instances, Seattle families often seek the assistance of a guardianship lawyer or disability lawyer to assist them with these processes.

Petitioning the Court to End a Minor Guardianship  

Sometimes children are placed under a minor guardianship because either parental rights were terminated by the court or because the court finds that the parent cannot perform parental duties. If a parent is facing deployment, serious illness, or a long course of treatment, a parent may voluntarily place a child under minor guardianship to ensure the care and wellbeing of their child during this time.

Termination of a minor guardianship falls under Washington law RCW 13.26.070. To petition the court to end a minor guardianship, the petitioner (usually, the parent, but sometimes the minor child, or another concerned family member or adult) must show that “a substantial change has occurred in the circumstances of the child or the guardian” and that termination of the minor guardianship is in the best interests of the child. A minor guardian may also voluntarily resign as guardian, but then the court will need to determine whether a new guardian must be appointed or whether the parent can regain custody.
The law lists several factors that must be shown to terminate a minor guardianship.

  • Parental deficiencies must be corrected. If a minor guardianship was established because of parental deficiencies, the parent must show that he or she has corrected those deficiencies, and that “circumstances of the parent have changed to such a degree that returning the child to the custody of the parent no longer creates a risk of harm to the child’s health, welfare, and safety.” A potential example of this would be a parent who has successfully completed a substance abuse treatment program, is able to establish that he or she has had a period of successful sobriety and can show that his or her current living situation is safe for the health, welfare, and safety of the child.
  • A child over age 12 must agree. If the minor is 12 years or older, the minor must agree to the termination of the guardianship and agree to be returned to his or her parent.
  • Termination is in the child’s best interests. The court must find that terminating the guardianship and returning the child to the parent is in the child’s best interests. Washington’s best interests of the child laws are rather vague and open to interpretation (see RCW 26.09.002). In general, the courts recognize the importance of a child maintaining a relationship with his or her parent. The court will evaluate whether the parenting arrangement promotes the child’s “emotional growth, health and stability, and physical care.” The court will also consider how altering a child’s situation with a current minor guardian will impact the child’s physical, mental, or emotional health. Generally, the courts tend to favor stable situations for children.

If you are a parent seeking to terminate a minor guardianship, you may want to seek the assistance of a guardianship lawyer in Seattle, Washington. It can sometimes be challenging to navigate Washington’s best interest of the child’s laws and to show the courts that a “substantial change” has occurred in your circumstances or your child’s circumstances to warrant the termination of the minor guardianship. When it comes to matters as crucial and sensitive as child custody, it can be helpful to have a Seattle, Washington guardianship lawyer assist you with providing supportive evidence to build the strongest possible case so that your children can be returned to your care. If you cannot afford a guardianship lawyer, some counties offer family law facilitators who can help. Parents who live in King County, can call 2-1-1 between 8 a.m. and 6 p.m. to be referred to a legal aid provider. That said, legal aid services can often be strained and limited, and many parents and families seeking to terminate a guardianship hire private Seattle guardianship lawyers to help them navigate all aspects of the petition process.

If you look at forms for terminating or changing a minor guardianship, the section outlining reasons for changing the guardianship only provides nine lines for a parent to write the “facts supporting” the request. The space provided to “describe how the situation has changed and why the court should approve your request” is very limited. Attachments are permitted and, the space provided on these forms may not be sufficient to make a strong case.

Concerned family members who wish to petition the court to seek minor guardianship of a child or to remove a child from licensed out-of-home placements, may also want to seek the assistance of a Seattle guardianship lawyer. Once a child has been placed with a minor guardian, the courts tend to favor arrangements that don’t disrupt the child’s life, unless the person seeking a guardianship can show that a new arrangement would be in the child’s best interest.

Once a petition has been filed with the court, the court will schedule a hearing to evaluate the case. Court papers must be served to the current minor guardian, and to the child, if the child is over age 12.

Filing a Written Complaint to Terminate an Adult Guardianship

If you are an adult under a guardianship and don’t believe the guardianship is required, or if you would like to explore alternatives to guardianship, you have the right to file a written complaint to terminate your adult guardianship. Sometimes concerned family members file written complaints to terminate adult guardianships because they have concerns with how a guardianship is being administered.

The courts tend to be very reluctant to put a guardianship in place for an adult because a guardianship can seriously limit personal freedom. Yet, if the court finds that a person is at risk of personal harm because they cannot provide for their own health, housing, safety, or because they cannot manage their money or property, the court may find the person incapacitated, and put a guardianship in place. A guardianship can likewise be terminated if the court finds that a person has regained capacity, or if the court finds that the individual has capacity. In some cases, a person doesn’t necessarily have to regain full capacity for a guardianship to end. The court might find, for example, that guardianship is not required because alternatives to guardianship offer sufficient support.

If a current guardian is neglecting his or her duties, or if the current guardian has himself or herself become incapacitated, the guardianship can be changed.

Because capacity is a key factor in establishing an adult guardianship, and in terminating an adult guardianship, it is important for us to look at what the law has to say about determinations of capacity.

Washington law RCW 71.32.110 provides guidelines for determinations of capacity. A person under a guardianship, a guardian, or health care provider can seek a determination of capacity. A person can only be found legally incapacitated if incapacity is determined by the court; or if two health care providers determine that the person is incapacitated. Terminations of guardianship can occur if the court has previously found a person incapacitated, but the person’s health condition changes and either the court or two medical providers now find that the person has capacity.

Terminating a guardianship requires the involvement of the court. Notably, individuals wishing to terminate a guardianship may need to explain how circumstances have changed if a guardianship is already legally in place. For these reasons, adults under a guardianship seeking to terminate their guardianship may want to speak to a guardianship lawyer in Seattle, Washington.

A guardianship lawyer in Seattle, Washington may be able to review medical records, or help you seek new medical evaluations to confirm capacity. Additionally, if you are a disabled individual who wasn’t aware of alternatives to guardianship (for example, your parents sought adult guardianship when you turned 18 and you weren’t aware of alternatives), a guardianship lawyer may be able to help you and your family work out alternatives to guardianship.

NAMI of Southwest Washington, is an organization that assists individuals affected by mental illness, but also lists alternatives to guardianship that may be available to individuals with other disabilities. These alternatives include:

  • Durable Power of Attorney (for financial or health care decision-making)
  • Trusts
  • Joint Property Arrangements
  • Living Will
  • Mental Health Advanced Directives
  • Shared Housing Programs
  • Community Residential Care
  • Assisted Living
  • Nursing Home
  • Supported Decision-Making Arrangements

Of course, many of these alternatives to guardianship are best explored before a guardianship has been established, which is why disabled individuals may want to seek the assistance of a Seattle, Washington guardianship lawyer who can help them explore their options and alternatives.

Once a complaint to terminate a guardianship has been made, the court may schedule a hearing, appoint a guardian ad litem to investigate the complaint, dismiss the complaint if the court doesn’t see it as having merit, or take another action.

While it is not necessary to hire a lawyer to make a complaint to terminate a guardianship, an incapacitated person has the right to be represented by a lawyer, and the court may appoint a guardianship lawyer to represent an incapacitated person in certain circumstances.

Guardian Abuse or Fraud

There have been situations where guardians have abused their entrusted positions. Guardians have a fiduciary duty to act in the best interests of their wards. If a family member or individual under a guardianship is concerned about the professional conduct of a Certified Professional Guardian, the family or individual can file a grievance with the Certified Professional Guardianship Board. The court may oversee the complaint.

Hiring a Guardianship Lawyer in Seattle, Washington to Terminate a Guardianship

Terminating a guardianship may require you to submit evidence to the court to show how circumstances have changed. If you are a parent, you may need to show how you’ve changed. If you are under a guardianship, you may need to show that your condition has changed. A guardianship lawyer in Seattle, Washington at Truce Law may be able to help you navigate the process of terminating a guardianship, assist you with gathering evidence to support your case, and help you present the case in court. Our collaborative lawyers may also be able to work with your family to explore less restrictive alternatives to guardianship before a guardianship is put in place.

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