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WA-Probate > Washington-Guardianship > Creating the Guardianship: Preparing for Court
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Overview of the Creation Process
Legally, there are four (occasionally, only three) major tasks in creating a Guardianship:
If this is your "first time in Court," WASHINGTON PROBATE hopes that you will find the Court personnel, the Judges, clerks, and other administrative staff, to be both knowledgeable and helpful (if a little harried due to the workload), and your Court experience itself to be a remarkable example of society and democracy at work on a day-to-day basis (if a little hectic and seemingly disorganized). |
This is the "doing your homework --- getting your ducks in a row" phase, so that when you do go to Court, you'll sail through and come out with the prize --- the creation of the Guardianship and your Letters, authorizing you to manage it.
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If: |
1. Determining the Proper Court ñ
A Washington Superior Court has jurisdiction to appoint:
A Guardian of the
Person of an incapacitated Washington resident, and
A Guardian of the
Estate of:
An incapacitated
Washington resident, or
An incapacitated Washington non-resident who owns property "needing care and attention" in the county of that Court. RCW 11.88.010(1)
The proper Court is the Superior Court in the county in which the incapacitated Washington resident resides or in which the nonresident owns property.
Exceptions:
If the incapacitated person resides in a
governmentally-supported facility, then the proper Court may be any of:
The county where the facility is located,
The county of residence prior to residence in
the facility, or
The county where any parent or spouse of the
incapacitated person resides.
If the incapacitated person has moved within one year of the filing of the Petition for Guardianship, then any interested person may request that the Petition be heard in the county where the incapacitated person last resided for one year or more, and the request shall be granted if the hearing in that county would be in the incapacitated person's best interests and promote a more complete consideration of the relevant matters. RCW 11.88.010(3)
2. Filing a Case Cover Sheet ñ
Every new matter filed in a Washington Superior Court requires the filing of a Superior Court Case Cover Sheet. King and Pierce (and perhaps other) Counties have their own version of it. Select, complete, and sign the appropriate form from among the following three alternatives:
King County:
Pierce County:
Other Counties:
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Case Type 3-6 Cover Sheet form (scroll down the pages). |
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The Issue: You need to have the Court create the Guardianship and appoint you as the Guardian. Upon your appointment, the Court will direct the Clerk to issue you a document, known as Letters, confirming your appointment in writing. |
3. Petitioning for a Guardianship ñ
Select, complete, and sign the appropriate form from among the following three alternative Petition for Guardianship forms, depending on:
If the Guardianship is going to be for BOTH the Person and the Estate:
If the Guardianship is going to be for the Person ONLY:
If the Guardianship is going to be for the Estate ONLY:
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Notice of Filing of Petition for Guardianship: This Notice plus a copy of the Petition for Guardianship are required to be personally served on both the incapacitated person and any appointed Guardian ad Litem within 5 days of filing the Petition for Guardianship.
Notice of Hearing on Petition for Guardianship: If: ● The incapacitated person is under 14 & a parent signs the Petition, or ● If the incapacitated person is at least 14 but under 18 and consents to the appointment of the nominated Guardian --- Then Notice of Hearing is not required. |
4. Avoiding Having to Send Notice of Filing or Hearing ñ
The notice requirements in guardianship cases are complex, due to two different types of notice being required for two different classes of recipients:
Types of Notice:
Notice that a Petition for Guardianship
has been filed, and
Notice of the hearing on that Petition;
and
Classes of recipients:
The incapacitated person & the Guardian ad
Litem, and
All other interested persons.
For a detailed discussion of the Notice requirements, see: Giving Notice.
a. Notice that a Petition for Guardianship Has Been Filed ñ
The general rule: Notice that a Petition for Guardianship has been filed, together with a copy of the Petition, must be personally served on both the incapacitated person and his/her Guardian ad Litem.
Timing: Within 5 Court days after filing the Petition for Guardianship. RCW 11.88.030(4)
b. Notice of the Hearing on the Petition ñ
The general rule: Notice of Hearing is required by:
Personal service on the incapacitated person if
he/she is at least 14 years old (RCW
11.88.030(4)(a));
Personal service on any Guardian ad Litem (RCW
11.88.030(4)(a)); and
Either personal service or service by certified mail,
return receipt requested, on:
The incapacitated
person if he/she is under 14;
A parent of the
incapacitated person if the incapacitated person is a minor;
All known children
of the incapacitated person not residing with an otherwise notified person;
Any spouse of the
incapacitated person;
Any other person who
has been appointed as a Guardian (either Full or Limited) of the
incapacitated person;
Any person with whom the incapacitated person resides. RCW 11.88 040
Timing: At least 10 days before the hearing on the Petition for Guardianship. RCW 11.88.030(4)
c. Notice Exceptions ñ
See: Giving Notice.
5. Preparing a Declaration of Proposed Guardian ñ
Complete and sign a:
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If you are a Washington resident --- |
6. Avoiding Designating a Resident Agent ñ
If you are a Washington non-resident, see: Designating a Resident Agent.
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If: ● The guardianship's assets are less than $3,000, or ● All the guardianship's cash and securities will be deposited into a blocked account --- |
At the discretion of the Court, no Bond is required:
If
the value of the assets of the Guardianship is (and remains) less than $3,000
(RCW
11.88.100); or
To
the extent that any cash and securities of the Guardianship are placed in what is known as a "blocked account" --- an account at a
savings and loan, bank, trust company, escrow corporation, or any
other corporation approved by the Court such that:
The depository signs a receipt
for the funds and securities stating that they will not be released until
further order of Court, and
The Guardian files the receipt (what is known as a "Receipt of Funds into Blocked Account") with the Court. RCW 11.88.105
Otherwise, a Bond is required in the amount of all cash and securities not deposited into a blocked account. RCW 11.88.100
For further information about blocked accounts, see: Blocked Account.
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The Issue: Courts don't write Orders, they only sign them. You must prepare a proposed Order for the Judge's review and signature, memorializing his/her approval of your Petition. |
8. Drafting a Proposed Order Appointing Guardian ñ
Select the appropriate form from among the following three alternatives:
If the Guardianship is going to be for BOTH the Person and the Estate:
If the Guardianship is going to be for the Person ONLY:
If the Guardianship is going to be for the Estate ONLY:
Add the Header (ie, complete the top half of the first page: county, ward's name, and Case. No. if available) and your contact information on the footer and sign it.
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If: ● The minority of the incapacitated person is the only reason for the guardianship, and ● At least one of the minor's parents signs the Petition --- |
9. Drafting a Proposed Order Appointing Guardian ad Litem & Notice of Hearing ñ
A Guardian ad Litem ("GAL") is a person appointed by the Court for the sole purpose of advocating on behalf of another, typically an incapacitated person; "ad Litem" is Latin and means "for the suit." Washington law provides that upon the filing of any Petition for Guardianship, the Court must appoint a GAL for the incapacitated person except if:
The
minority of the incapacitated person is the only reason for the guardianship,
and
At least one of the parents of the child signs or consents to the Petition for Guardianship. RCW 11.88.090(3)(b)
If you have a "minority only" guardianship and neither parent signs the Petition for Guardianship, then by having one of the parents sign a
you should be able to avoid having a GAL appointed.
If your situation does not fall within this one "minority only + parent signs or consents" exception, complete the
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If the value of the Alleged Incapacitated Person's total assets exceeds $3,000 --- |
10. Drafting a Proposed Order Waiving Filing Fee ñ
No filing fee is required to be paid if either:
The value of the assets of the incapacitated person total
less than $3,000 (RCW
11.88.030(3)); or
In the judgment of the Court, the imposition of a fling fee would impose a hardship upon the incapacitated person (RCW 11.88.030(2)(b)).
Otherwise, the filing fee (as of July, 2005) is $200.
If you are eligible for a waiver of the filing fee on the basis of the $3,000 exception and want the fee to be waived, complete the:
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Order Waiving Filing Fee form. |
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If the Alleged Incapacitated Person needs no protection against ongoing bad acts or omissions or against threats or has no emergency needs --- |
11. Seeking Temporary Relief --- Motion for a Temporary Restraining Order ñ
If the incapacitated person needs protection or has emergency needs, see: Seeking Temporary Relief.
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The Issue: You must file an Oath (a sworn statement by the Guardian promising to manage the guardianship according to law) in order to obtain your Letters. |
12. Filing an Oath of Guardian ñ
After the Court appoints you as Guardian but before the Clerk will issue you Letters, you must file an Oath of Guardian (and any Bond that may be required). RCW 11.88.100
Complete the Header of an:
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Oath of Guardian form. |
Unlike most other forms that you will use during the guardianship, all oaths of office must be notarized. RCW 9A.72.085. So partially complete the Oath and have your signature notarized.
Side-bar: Courts don't provide notarial service. Private notarial services are available in some Courthouses; see, for example, Notary at King County Courthouse and Kent Regional Justice Center.
Side-bar: Evidencing Your Authority as Guardian.
13. Telephoning the Probate Clerk ñ
Telephone the County Clerk in the county where the guardianship will be filed (Telephone Numbers) and ask to speak to the probate clerk:
Determine the days and times when the Court is available to hear Petitions for Guardianship.
Determine if there are any requirements specific
to your county or other requirements that would be helpful for you to
know before going to Court. For example:
Complete any of the foregoing requirements that may be applicable to you.
You have now completed the steps required to prepare your Court filings to create a typical guardianship. Your next step is to file your pleadings with the Court.
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