WA-Probate > Washington-Guardianship > Creating the Guardianship: Going to Court

I.  Creating the Guardianship

2. Going to Court

   1. The Notice of Filing of Petition for Guardianship Requirement

   2. Filing Procedure for Usual Guardianship

   3. Procedure If No Filing Fee Will Be Paid

   4. Procedure If No Guardian ad Litem Will Be Appointed

   5. Procedure If No Notice of Hearing Is Required

See in general:  Washington Probate Court Practice

And in particular:

• The Initial Filing in a New Case and
   

• Appearing in Probate Court

The foregoing, although written for the purpose of opening a Decedent's estate, is largely applicable for the purpose of creating a guardianship --- with six significant exceptions.  Unlike a Decedent's estate:

1. A Notice of Filing of your Petition for Guardianship is usually required to be served; furthermore, it must be served personally, ie, not by mail.  See: Notice that a Petition for Guardianship Has Been Filed
    

2. A filing fee is not required to be paid for some guardianships.  See: Drafting a Proposed Order Waiving Filing Fee
    

3. A Guardian ad Litem must be appointed for most guardianships.  See: Drafting a Proposed Order Appointing Guardian ad Litem & Notice of Hearing
    

4. Notice of Hearing is usually required; furthermore, the Notice requirements in general are different, complex, easily misunderstood, and need further explanation.  See: Giving Notice.
    

5. The alleged incapacitated person is required to attend the hearing on the Petition for Guardianship unless the Court waives this requirement "for good cause other than mere inconvenience ....  Alternatively, the Court may may remove itself to the place of residence of the alleged incapacitated person and conduct the final hearing in [his/her] presence ...."  RCW 11.88.040
    

6. The hearing on the Petition for Guardianship may be held in closed Court without admittance of any person other than those necessary to the proceeding.  RCW 11.88.040

1.  The Notice of Filing of Petition for Guardianship Requirement     ñ

RCW 11.88.030(4), the statute providing for Notice of Filing of Petition for Guardianship, is clear:

The only exception is for an incapacitated person under age 14.  Practically speaking, what this means is that the procedure for obtaining the guardianship and your Letters will almost inevitably require two trips to the Courthouse, usually around two months apart:

• First --- to file your Petition, among other reasons so that thereafter (and within the next five Court days) you can have the incapacitated person (if age 14 or older) and the GAL served with the Notice that "a guardianship proceeding has been commenced," and
   

• Second, after the incapacitated person and the GAL have been timely served with the Notice of Filing and all persons entitled to Notice of Hearing have timely received it ---  to attend the hearing on your Petition.  Conceivably, you might be able to obtain a Consent & Waiver from everyone entitled to Notice except the incapacitated person, but that problem remains.  Furthermore, as you are alleging that the incapacitated person is incapacitated, it would seem inconsistent for you to have him/her sign a Consent to your Petition or a Waiver of Notice of its Hearing.

Bottom-line: In most cases, the procedure will be:

1. File your Petition and any other pleadings at the Courthouse;
    

2. Go home, satisfy the two Notice requirements, and wait until your hearing:
    

   1. Notice of Filing (within five Court days after filing your Petition), and
       

   2. Notice of Hearing (most easily done with your Notice of Filing and required to be done at least ten days before your hearing); and
       

3. Return to the Courthouse (generally around two months after filing your Petition) to attend the hearing on your Petition.

2.  Filing Procedure for Usual Guardianship (Filing Fee Paid + Guardian ad Litem Appointed + Notice of Hearing Required)     ñ

1. At the Court Clerk's Office, have the clerk stamp the originals of your:
    

   1. If in King County: King County Superior Court Case Information Cover Sheet & Case Assignment Designation; and
       

   2. Petition for Guardianship;
       

   3. Declaration of Proposed Guardian; and
       

   4. Order Appointing Guardian ad Litem & Notice of Hearing.
       

   5. If you are allowed to set your own hearing date (eg, you are filing in King County), set your hearing date suitably and conveniently.
       

   6. If not in King County, ask the Clerk how hearings are set, and if in your county, the Clerk's Office sets hearings, then negotiate with the clerk for a suitable and convenient date and time for you and the incapacitated person and set your hearing for that date and time.
       

   7. Pay the filing fee & get a receipt for it.
       

2. Take all your stamped documents to the probate Court and hand them to the Judge's clerk:
    

   1. Have the Court appoint a Guardian ad Litem ("GAL"); and
       

   2. Obtain the GAL's name and telephone number.
       

3. Go home and satisfy the Notice requirements (see Giving Notice for detailed instructions):
    

   1. Serve a copy of the Petition for Guardianship, the Notice of Filing of Petition for Guardianship, and the Notice of Hearing & Declaration of Mailing on the incapacitated person (if age 14 or older);
       

   2. Serve a copy of those documents plus the Declaration of Proposed Guardian and Order Appointing Guardian ad Litem & Notice of Hearing on the GAL (or send them plus an Acceptance of Service to the GAL);
       

   3. Mail by certified mail, return receipt requested, a copy of the Notice of Hearing & Declaration of Mailing to all other persons required to receive it; and
       

   4. Wait until your hearing date, usually in about two months, in order to allow sufficient time for the GAL to make his/her investigation and file his/her Report of Guardian ad Litem with the Court.  In other words, you will:
       

      1. Go to Court initially, to file your initial documents and obtain the appointment of the GAL; and
          

      2. Return to Court approximately two months later to attend the hearing on your Petition.

       

4. On your hearing date, go to the probate Court and present to its clerk:
    

   1. The original of any Notice of Filing of Petition sent along with its Return of Service.
       

   2. The original of any Notice of Hearing & Declaration of Mailing sent.
       

   3. Any Bond you believe to be required.
       

   4. The original of your proposed Order Appointing Guardian.
       

5. If the Judge signs your Order Appointing Guardian, return to the Court Clerk's Office and file:
    

   1. The originals of all of your documents having to do with Notice;
       

   2. The original of the Order Appointing Guardian, signed by the Judge;
       

   3. The original of your Oath of Guardian; and
       

   4. If one was required, any Bond.
       

6. Obtain a certified copy of your Letters of Guardianship from the clerk ($2 fee, RCW 36.18.016(8)).

3.  Procedure If No Filing Fee Will Be Paid     ñ

As stated earlier, the usual circumstance in which a filing fee is not required to be paid is if the value of the incapacitated person's total assets is less than $3,000.  To obtain a waiver of filing fee:

1. Before going to the Court Clerk's Office (Step #1 above), go to the probate Court and present to its Clerk your:
    

   1. Petition for Guardianship; and
       

   2. Order Waiving Filing Fee.
       

   3. Have the Judge sign your Order, and
       

   4. Get the Petition and the signed Order back from the clerk.
       

2. Go to the Court Clerk's Office and:
    

   1. If the Judge has signed your Order, hand your Order Waiving Filing Fee to the Clerk, and
       

   2. Begin the filing process as above but omit paying the filing fee.

4.  Procedure If No Guardian ad Litem Will Be Appointed     ñ

As stated earlier, the only (usual) circumstance in which the appointment of a Guardian ad Litem is not required is if:

1. The minority of the incapacitated person is the only reason for the guardianship, AND
    

2. At least one of the parents of the child signs the Petition for Guardianship.  RCW 11.88.090(3)(b)

If this exception applies to you:

1. In Step #1 of the usual filing procedure:
    

   1. Omit the preparation and filing of an Order Appointing Guardian ad Litem; and
       

   2. Simply file your documents with the clerk, as above, but omit Step #2 (Going to the probate Court to obtain the appointment of the GAL).

5.  Procedure If No Notice of Hearing Is Required     ñ

This is an unusual but possible circumstance:

1. No Guardian ad Litem is required to be appointed (ie, "minority only" + "parent consents"), and
    

2. Either:
    

   1. The minor is under the age of 14, or
       

   2. If the minor is age 14 or older, the minor consents in writing to the appointment of the nominated Guardian.

Then you should be able to  "walk your Petition for Guardianship through the Court"  --- in other words, considerably shortening the typical two month waiting period.

By completing the instructions on this page and the prior page, you will have completed the steps required to create a typical guardianship and obtain your Letters of Guardianship.  Your next step is to begin your management of the guardianship.

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