THE GOOD GUARDIAN. A Pamphlet to Assist With Understanding the Duties of A Court-Appointed Guardian - 1 -

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1 THE GOOD GUARDIAN A Pamphlet to Assist With Understanding the Duties of A Court-Appointed Guardian _ - 1 -

2 INTRODUCTION There are basically two types of guardianship: guardianship of the person and guardianship of the estate. A guardian of the person has the duties of providing for the incapacitated person s personal decisions, such as consent for medical treatment, marriage, choice of residence, nutrition, health and personal safety. The guardian of the estate manages and oversees the assets which belong to the incapacitated person. Many times the guardian is appointed to serve in both capacities. Additionally, there are limited guardianships and full guardianships of both the person and estate. While incapacitated in one area, a person may be capacitated in another. If this is true, then the court can established a limited guardianship. For instance, the court could decide that a person needs to have a guardian of his or her estate, but that he remains capacitated to make an estate plan. When a full guardianship is established the person loses his or her right to vote. In a limited guardianship, he or she does not unless there is a finding that he or she is incapacitated to vote. Regardless of the type and limitations imposed on the guardian, a guardian is considered a fiduciary for the incapacitated person. The guardian must act at all times in the best interest of the incapacitated person. The guardian must have no conflicts of interest which hinder these fiduciary duties. Many activities of the guardian require prior approval by the court as the court is ultimately responsible for the incapacitated person

3 I. INITIAL STEPS TO TAKE IN ORDER TO ACT AS A GUARDIAN UNDER A COURT ORDER After the court enters an order creating the guardianship and appointing you to act as guardian, there are several steps to take before you can take any action as guardian. Additionally, there are several duties that you will be required to follow by law. You could be removed as guardian if you fail to follow your court-ordered duties or duties required by Washington state law. You have many duties for which you are responsible. While this is not meant to be an all-inclusive guide, it should serve as a reference point. Technical legal and accounting questions should be addressed to attorneys and accountants. Most guardians will need to consult with either or both of these professionals from time to time. A. Court Order. Obtaining the court order creating the guardianship is the first of several steps that must take place before you may act as guardian. The order will contain directives to you and set limits on your right to act for the incapacitated person. B. Oath of Guardian. You will need to sign an oath of guardian. This is a document you must sign under oath that you agree to follow all court orders and the laws of the state of Washington pertaining to your duties as guardian. C. Bond. The court may have ordered that you post a bond before being issued Letters of Guardianship -- a legal professional can assist you with obtaining a bond. A bond is for the protection of the assets of the incapacitated person. If a bond is required, it must be obtained and proof filed with the court before you will receive Letters of Guardianship and thus before you can take any actions as a guardian. Instead of the posting of a bond, the court may authorize you put in place other protections, such as the blocking of the incapacitated person s accounts. A blocked account cannot be accessed by anyone, including the guardian, without permission of the court. In certain instances, a bond may not be required. If the estate is worth less than $3,000 no bond is - 3 -

4 necessary. However, the guardian is required to report to the court any changes in the assets which take the total estate above $3, Additionally, if the person receives more than $ per month for three months in a row (this does not include state or federal benefits), the guardian will need to file an annual statement with the court reflecting the monthly income. D. Letters of Guardianship. Once your Oath of Guardian is filed with the court clerk, and after any required bond is posted, the clerk will issue you Letters of Guardianship. Without Letters of Guardianship, you can not act on behalf of the incapacitated person

5 II. INITIAL MANDATORY REPORTING TO THE COURT AND OTHER FIRST STEPS A. Inventory. An initial inventory is due within three months after the guardian is appointed as guardian of an estate. It must be verified (sworn under oath) and contain a listing of all property of the incapacitated person which comes into the guardian's possession or knowledge, including a statement of all encumbrances, liens, and other secured charges on any item. This inventory begins upon the date of the guardianship order which appointed you to act as a guardian. B. Personal Care Plan. It is the duty of the guardian of the person to file within three months after appointment a personal care plan for the incapacitated person which must, at a minimum include: 1. An assessment of the incapacitated person's physical, mental, and emotional needs and of such person's ability to perform or assist in activities of daily living, and 2. The guardian's specific plan for meeting the identified and emerging personal care needs of the incapacitated person. C. Notification to the Department of Revenue. As guardian, you must notify the Washington State Department of Revenue that a guardianship has been established. Your failure to do so may result in personal liability. You may send notification to the department at the following address: State of Washington Department of Revenue P.O. Box Olympia, WA D. Designation of a Standby Guardian. The guardian, must file in writing with the court, a notice designating a standby guardian to serve as guardian at the death or legal incapacity of the court-appointed guardian. The notice must state the name, address, zip code, and telephone number of the designated standby guardian. Notice of the guardian's designation of the standby guardian - 5 -

6 must be given to the standby guardian, the incapacitated person and his or her spouse and adult children, any facility in which the incapacitated person resides, and any person entitled to special notice or any person entitled to receive pleadings. In addition to the powers of a standby guardian, not discussed herein, the standby guardian shall have the authority to provide timely, informed consent to necessary medical procedures, as authorized by law, if the guardian or limited guardian cannot be located within four hours after the need for such consent arises. E. Setting up Accounts and Notifying Others. It is important that you let others know that a guardianship has been established and that you have been appointed to act as guardian. In particular, you will need to make certain that, as a guardian of the estate, you notify all financial institutions holding money belonging to the incapacitated person. Generally, in order to change the accounts to reflect the new guardianship, the bank or financial institution will need to have a certified copy of the Order Creating Guardianship as well as a copy of your Letters of Guardianship. Different institutions handle this in different ways. However, it is wise to remember that you may not mix your money with that the the incapacitated person. It is best if you open a new account for the incapacitated person for him as John Smith, as Guardian for Jennifer Smith. Institutions are familiar with guardianships and can tell you what they need and/or recommend under the specific circumstances. You will also need to notify others that you are now guardian for the person. You need to notify health care providers, nursing homes, care providers, benefit administrations (pension and social security). It is a good idea to change the incapacitated person s mailing address to yours for purposes of bills and money coming in. Personal correspondence should be allowed to be received directly by the incapacitated person. Additionally, you will be required to give notice of your appointment to the individuals listed in the order as well as any person who files with the court and gives you a copy of a request for special notice

7 III. FOLLOW UP REPORTING Accountings: The updating of the initial inventory is called an accounting. It must be updated annually (unless otherwise directed by the court), within ninety days after the anniversary date of the guardian's or limited guardian's appointment. The accountings must also be sworn under oath and they must contain the following information: (1) Identification of property of the guardianship estate as of the date of the last account or, in the case of the initial account, as of the date of inventory; (2) Identification of all additional property received into the guardianship, including income by source. Note this includes income from social security or other governmental benefit sources even though those administrations also may require separate accountings; (3) Identification of all expenditures made during the account period by major categories; (4) Any adjustments to the guardianship estate required to establish its present fair market value, including gains or losses on sale or other disposition and any mortgages, deeds of trust or other encumbrances against the guardianship estate; and (5) Identification of all property held in the guardianship estate as of the date of account, the assessed value of any real property and the guardian's estimate of the present fair market values of other property (including the basis on which such estimate is made), and the total net fair market value of the guardianship estate. In addition, immediately following such statement of present fair market value, the account shall set forth a statement of current amount of the guardian's bond and any other court-ordered protection for the security of the guardianship assets. B. Updating the Personal Care Plan. Just as the guardian must annually update the initial inventory with accountings, the guardian of the person is required to file annually or, where a guardian of the estate has been appointed, at the time an account is required to be filed a report on the incapacitated person, which shall include: - 7 -

8 (1) The address and name of the incapacitated person and all residential changes during the period; (2) The services or programs which the incapacitated person receives; (3) The medical status of the incapacitated person; (4) The mental status of the incapacitated person; (5) Changes in the functional abilities of the incapacitated person; (6) Activities of the guardian for the period; (7) Any recommended changes in the scope of the authority of the guardian; (8) The identity of any professionals who have assisted the incapacitated person during the period. C. Reporting Other Changes. Additionally, the guardian or limited guardian shall report any substantial change in income or assets of the guardianship estate within thirty days of the occurrence of the change. A hearing shall be scheduled for court review and determination of provision for increased bond or other provision. Additionally the guardian must report to the court within thirty days any substantial change in the incapacitated person's condition, or any changes in residence of the incapacitated person. D. Obtaining Court Approval. The guardian can request at the time of the filing of the accountings and updated personal care plans that the court approve those reports

9 IV. OTHER GUARDIAN DUTIES A. Payment of Claims. A guardian of the estate is under a duty to pay from the estate all just claims against the incapacitated person, whether they constitute liabilities of the incapacitated person which arose prior to the guardianship or liabilities properly incurred by the guardian for the benefit of the incapacitated person or his or her estate and whether arising in contract or in tort or otherwise, upon allowance of the claim by the court or upon approval of the court in a settlement of the guardian's accounts. Court approval is generally required before such claims are paid. B. Protecting and Preserving the Estate. The guardian must protect and preserve the guardianship estate, to account for it faithfully, to perform all of the duties required by law, and at the termination of the guardianship or limited guardianship, to deliver the assets of the incapacitated person to the persons entitled thereto. The court may order a guardian or limited guardian to do anything that a trustee can do. A specific court order is necessary to act in this manner. The duty, if granted, would include the duty to invest and reinvest the property of the incapacitated person in accordance with the law. BE AWARE that no investments can be made without prior order of the court in any property other than unconditional interest bearing obligations of this state or of the United States and in obligations the interest and principal of which are unconditionally guaranteed by the United States, and in share accounts or deposits which are insured by an agency of the United States government. The court may authorize specific investments or may authorize the guardian to invest and reinvest without further order of the court. If it is in the best interests of the incapacitated person that a specific property be used by the incapacitated person rather than sold and the proceeds invested, the court may so order;

10 C. Request the Court to Authorize Disbursements. The Guardian may apply to the court no later than the filing of the inventory for an order authorizing disbursements on behalf of the incapacitated person: PROVIDED, HOWEVER, That the guardian or the person having the care and custody of an incapacitated person, may apply to the court for an order directing the guardian of the estate to pay to the person, department, bureau, agency, or charitable organization having the care and custody of an incapacitated person, or if the guardian of the estate has the care and custody of the incapacitated person, directing the guardian of the estate to apply an amount weekly, monthly, quarterly, semi-annually, or annually, as the court may direct, to be expended in the care, maintenance, and education of the incapacitated person and of his or her dependents. In proper cases, the court may order payment of amounts directly to the incapacitated person for his or her maintenance or incidental expenses. D. Caring for the Incapacitated Person. Consistent with the powers granted by the court, the guardian of the person must care for and maintain the incapacitated person in the setting least restrictive to the incapacitated person's freedom and appropriate to the incapacitated person's personal care needs, assert the incapacitated person's rights and best interests, and if the incapacitated person is a minor or where otherwise appropriate, to see that the incapacitated person receives appropriate training and education and that the incapacitated person has the opportunity to learn a trade, occupation, or profession. You should be aware that no residential treatment facility which provides nursing or other care may detain a person within such facility against their will. It is important to immediately assess the incapacitated person s health care coverage. If the person is covered or eligible to be covered by Medicare, it is important to know if there exists a supplemental plan. If not, the guardian will have to try to obtain a supplemental plan within six months after the guardian s appointment. If a person has been transferred from a hospital to a nursing home directly, you must ascertain whether the person was hospitalized for a period of at least three days prior to the transfer. Medicare will not cover nursing home care where the person has not been hospitalized less than three days

11 Medicaid is a different type of insurance coverage for the financially eligible. Don t confuse it with Medicare coverage. Application must be made in order to obtain medicaid coverage and a complex set of rules apply. Legal assistance is often necessary to make application for medicaid. E. Providing Informed Consent for Health Care. The guardian of the person must provide timely, informed consent for health care of the incapacitated person, except in the case of a limited guardian where such power is not expressly provided for in the order of appointment or subsequent modifying order. The standby guardian may provide timely, informed consent to necessary medical procedures if the guardian or limited guardian cannot be located within four hours after the need for such consent arises. F. Limitations on the Power for Informed Consent. No guardian may involuntarily commit for mental health treatment, observation, or evaluation an alleged incapacitated person who is unable or unwilling to give informed consent to such commitment unless proper court procedures for involuntary commitment are followed. The guardian may not consent to: (1) Therapy or other procedure which induces convulsion; (2) Surgery solely for the purpose of psychosurgery; (3) Other psychiatric or mental health procedures that restrict physical freedom of movement. G. Guardian of a Veteran. Special rules apply to guardianships of veterans. Check with your attorney to make sure you are following the notice requirements and approvals necessary for veterans of the armed services. V

12 GUARDIAN LIMITATIONS What a Guardian May Not Do. Without a court order, the guardian may not: 1. Borrow or use money belonging to the incapacitated person; 2. Commingle money belonging to the incapacitated person with their own (or any other person s) funds or property; 3. Give gifts of the incapacitated person s funds, including medicaid planning; 4. Consent to therapy or other procedure which induces convulsion, surgery solely for the purpose of psychosurgery, sterilization, or psychiatric or mental health procedures that restrict physical freedom of movement; 5. Restrict that person s right to communicate with others, including legal counsel; 6. Invest the incapacitated person s money in unauthorized investments; 7. Place the incapacitated in a living environment that is unnecessarily restrictive; 8. Assume that the incapacitated person is doing fine just because he or she is a resident at a caregiving facility. Check on that person and make sure that the level of care is appropriate for his or her needs; 9. Continue to serve as guardian if you have been convicted of a felony or certain misdemeanors 10. Continue to serve if you become incapacitated to the point your judgment is impaired; and 11. Be unavailable to the incapacitated person and his or her caregivers. If you need to leave for extended periods of time, make sure a standby has been appointed, but better yet, arrange with the court to have someone authorized to act in your stead as a full guardian during your absence. Remember that you have been approved to act as guardian for an incapacitated person. You have been approved after investigation as an appropriate person to make substitute decisions for another person. Don t abuse that trust. You must take seriously your position. You are considered a fiduciary under the law of the State of Washington. You may be liable for actions which you take which may be adverse to the incapacitated person. Make certain that if you should become unable or unavailable to make the decisions entrusted to you by the court that you have followed the procedural protections set forth by law, such as designating a standby guardian who can make decisions in the event of your absence or death. Be considerate of the incapacitated person even though an incapacitatied person no longer can make decisions, they still have rights and are considered

13 vulnerable adults under the law. Don t take advantage of your position and be watchful to make sure others don t exploit or abuse the incapacitated person entrusted to you. Before you act ask for assistance from an attorney or from the court when making a decision which may impact you as guardian and the incapacitated person. VI. CONFLICTS OF INTEREST & BREACH OF GUARDIAN DUTIES Conflicts of interest arise when a guardian seeks to enrich him or herself from the estate of and to the detriment of the incapacitated person. The court has a duty to carefully scrutinize any acts taken by the guardian and the incapacitated person. The guardian is not allowed to profit at the expense of the estate. Conflicts are inherent when the guardian acts as if the estate is part of his or her own. Mixing the guardian s or anyone else s personal funds with the funds of the estate is not allowed. If the guardian is a spouse of an incapacitated person, funds can be used for the needs of the couple, however the incapacitated person s needs must come first. Medicaid planning can create conflicts of interest, particularly where the guardian is seeking to transfer or gift him or herself funds from the estate. A court order is necessary before medicaid planning can be accomplished. This protects everyone involved. A guardian may be entitled to be compensated for work done on behalf of the incapacitated person from the estate. The compensation must be reasonable. The guardian must secure court approval to pay him or herself out of the estate. Also, the payment of attorney fees should be made only after obtaining a court order. If the guardian has failed to perform his or her duties appropriately, the court may reduce or deny the guardian s compensation. If a breach of dues occurs, the guardian is responsible to the estate. This is true whether the breach was intentional or not. The guardian will generally be responsible for the loss as well as any interest which may have accrued had the breach not occurred. The guardian can be removed as guardian for breaching any of his or her duties

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