Under state law, once an individual turns 18, they are presumed to be a competent adult, with all the rights and responsibilities associated with adulthood. Many individuals welcome this, and are fully competent. Some individuals resist this, despite being otherwise competent. Some, while “legally” competent, are not competent to have adult responsibilities, or to make adult decisions. Sometimes an individual loses competence, because of illness or injury, or sometimes because of deterioration due to aging.

Washington statute specifies that a determination of incapacity is a legal, not a medical decision, based upon a demonstration of management insufficiency over time in the area of person or estate. Age, eccentricity, poverty, or medical diagnosis alone shall not be sufficient to justify a finding of incapacity.

“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. The legislature recognizes that people with incapacities have unique abilities and needs, and that some people with incapacities cannot exercise their rights or provide for their basic needs without the help of a guardian. However, their liberty and autonomy should be restricted through the guardianship process only to the minimum extent necessary to adequately provide for their own health or safety, or to adequately manage their financial affairs.” RCW 11.130.001.

Recent changes in Guardianship law are substantial, and took effect on 1/1/2022. Even more extensive changes to minor guardianships took effect  on 1/1/2021. Mr. Williams has recorded a YouTube video about guardianship issues especially for parents and family members of individuals with Developmental Disabilities. He has done these regularly for PC2, a local advocacy and information agency, which is also an excellent resource for all concerns about individuals with a Developmental Disability.

Among other things, the new statute changed what we used to call a guardian of the person to just guardianship, and what we used to call guardian of the estate to conservatorship. This conforms to the practice in most of the rest of the country. 

 Recent changes also allow for a greater amount of financial management under a guardianship, and for most individuals of limited means a conservatorship will not be necessary even if a guardianship is needed.

Who Needs a Guardianship?

For individuals who have the capacity to sign a power of attorney, and who have a functional family or support group, a guardianship should not be necessary. A trusted attorney in fact, acting as the fiduciary under a power of attorney for a now disabled person, should be able to make all of the financial and medical decisions necessary.

There are potential problems, however. It is not uncommon for either the Social Security Administration or the Veteran’s Administration, large federal bureaucracies, to refuse to accept otherwise valid powers of attorney. Also, if the extended family is dysfunctional, especially where there are members who have abused or exploited the individual, a power of attorney may be insufficient, and a guardianship becomes necessary.

For individuals with a developmental disability, a power of attorney may still be appropriate when there is sufficient capacity to understand what it means to have an “agent”. When that is not the case, a guardianship may be useful. However, there is no legal requirement to have a guardianship, and many disabled live long and productive lives without benefit of guardianship, even when it is generally acknowledged that they cannot make informed personal or financial decisions. While it may be counter intuitive, it is often true that the more severely disabled may be less in need of guardianship! This is true because there are a variety of alternatives to guardianship such as the informed consent statute, RCW 7.70.065, representative payees, trusts, etc. that may act as effective alternatives to guardianship.

Nevertheless, guardianship is an appropriate choice for at least some individuals with a developmental disability. Everyone is unique, and the need for a guardianship should be carefully thought out and discussed with your attorney.

If you are a guardian, Mr. Williams can assist you with ensuring that the guardianship is well managed and meets all court requirements. 

In addition, there is a REQUIRED Lay/Family(Non-Professional) Guardian Training (click on the training link) for ALL NEW and CONTINUING guardians. You must register for this training, and it is designed to take about two hours. It does not need to be done all at once, but can be stretched out over time. When you are done, you will sign a declaration under penalty of perjury that you have done the training. You should take this training if you are contemplating being a guardian, and you MUST take this training if you are already a guardian. 

Note that Guardianships are normally done in the county in which the incapacitated person resides. Mr. Williams is presently taking new clients only in Pierce County. He is also restricting his practice to individuals with developmental disabilities.

Attorney Timothy E. Williams serves clients in Tacoma and Pierce County in Washington State.

© Timothy E. Williams, Attorney at Law | Disclaimer | Law Firm Website Design by Omnizant

© 2024 Timothy E. Williams, Attorney at Law | Disclaimer
5302 Pacific Avenue, Tacoma, WA 98408
| Phone: (253) 591-7088

ABLE Accounts | Elder Law | Estate Planning | Probate/Estate Representation | Fiduciary Representation | Special Needs Planning | Guardianships | Wills | COMMUNITY PROPERTY | HEALTH CARE DIRECTIVE | WAELA | Charitable Links