Difficult cases generally require more frequent recourse to the court. One of the first things to do when the guardian or counsel knows that there will be difficulties is to plan for this.

It is also a good idea to ask that jurisdiction over the matter be retained by a specific judge or court commissioner. This enhances the economy of managing the case, improves the decision making process and generally results in more informed, thoughtful and impartial decisions from the bench. The usual practice of seeking orders through ex parte is appropriate to the vast majority of decisions necessary in guardianship work. In difficult or very adversarial matters, however, it is very much like having a different judge for each day of a long trial.

In cases in which family members are adverse parties or the ward is unreconciled to the actions of the guardian there will often be unrepresented participants in court hearings. Unrepresented parties in these proceedings are not aware of the forms and mores of these proceedings and most often question the integrity of the system. Having continuity on the bench considerably increases the likelihood that the courts decisions will be understood and obeyed.

If the court orders special reports, there should be a date certain for submission of the report. There should be specific language in the order which essentially describes the authority of the guardian to receive information from banks, brokerage houses, insurance companies and similar institutions; and the authority to receive medical records, personal care plans and any personal information held by a public agency. The order should specify as closely as possible any specific institutions, individuals and companies of which counsel is aware whose cooperation the guardian may need. If there is a previous fiduciary such as a guardian or attorney-in-fact, the duties of the guardian to review the accounts and activities of the previous fiduciary should be specified.

It is also a good idea to describe the limits of the guardians authority very closely. Often, even when there are no limits, those limits that exist under law should often be defined. It is common to include the language in RCW 11.92.043

Preexisting powers of attorney should be revoked generally and as specifically as possible.

While it is standard for the court order to specify those entitled to notice, counsel should not necessarily limit distribution of material filed at court to those parties. The guardian needs to assess who among the family and friends of the ward has interest in the matter. Any heir should almost automatically be considered to have an interest.

Tom Keller is addressing situations in which guardians ad litem are appropriate, and this will often be considered at various points in a difficult case. This is extremely costly and to be kept to a prudent minimum. Providing notice to a party in advance of or shortly after decisions of the guardian considerably reduces the likelihood and force of any future argument raised by the party. It can minimize future guardian ad litem costs by simplifying or eliminating the need for an investigation.

Difficult cases frequently include review of questionable gifts, real estate transactions or agreements made by the ward prior to the creation of the guardianship. When the beneficiary of the agreement is a close family member, someone who has acted as attorney-in-fact or someone who has had some other close personal relationship with the ward, counsel should review the elements of undue influence with the guardian.

An agreement or transfer should be reviewed closely when there is cause to believe that the capacity of the grantor was in some way impaired or reduced, the beneficiary had a close personal or confidential relationship with the grantor and the beneficiary received an unnaturally large benefit from the transfer.

The guardian should check to see if, at the time of the agreement the ward had a stroke, had demonstrated early signs of Alzheimers or some other dementia, had a drug or alcohol problem or was otherwise impaired. Advice of specialists as to the probable onset of present conditions can be useful. Medical records should be checked.

Confidential relationships always exist between principal and attorney-in-fact. Most close family members are considered to have confidential relationships. Having a joint checking account, relying on another to help make out checks, or even relying heavily on the advice of another usually signify confidential relationships.

Even when the guardian concludes that the transfer was competently performed, or was appropriate to the manner in which the ward competently conducted his/her personal affairs, it is often prudent to report this to the court as something the guardian has reviewed, with notice to other affected parties.

Again, specific court orders to parties having information about transactions and general language about access to records for the guardians research is often helpful.

The reliance on durable powers of attorney as a means to avoid more restrictive measures such as guardianship is widely recommended, and is a valuable tool. However, many difficult cases include controversy over the actions of the attorney-in-fact. Controversy is sometimes generated by friends or family members of the ward who are unduly suspicious of what turns out to be innocent and mostly appropriate behavior by the attorney-in-fact. On the other hand, the attorney-in-fact is sometimes found to have engaged in questionable actions, such as making gifts from the principle to the attorney-in-fact, making self-benefitting investments or simply mismanaging funds. The attorney-in-fact, often someone with little or no conception of fiduciary obligations, may have kept few or no records, may have co-mingled funds for convenience sake or in many other ways may have made it difficult to reconstruct his or her actions from written records.

There are occasions in which the behavior of the parties creates a constructive trust. Most often these purported arrangements are on the order of "mom always told me this is how she wanted it" or some similar illustration demonstrating the value of legal advice and the necessity for written agreements. Sometimes, however, there are valid reasons to continue a pattern that pre-exists the guardianship.

A constructive or resulting trust is one which is not necessarily written, but comes into being as a result of oral agreements, statements and, most particularly, actions of those involved. Here are two examples:

John's wife Mary died in 1980. Mary had had several investment accounts prior to her marriage, which she managed herself and in which John never had a specific interest. John and Mary had a daughter, Delores, who was chronically mentally ill. John and Mary were always generous in their efforts to support Delores, with Mary taking the lead in offering help with rent, medical bills and cash support. On her death bed Mary asked for and got a promise from John to use the investment accounts for Delores. John continued the pattern of assistance to Delores, sometimes using his own money, sometimes drawing from the investment accounts. He also took some money from the investment accounts for his own use. In 1989 John was rendered incompetent by a sudden and massive stroke. A guardian was appointed for John, who inventoried the investment accounts as Johns property, and was reluctant to establish a pattern of gifting from the guardianship estate to Delores. Eventually the court found that a constructive trust existed for the benefit of Delores, and granted her a stipend of $600 per month from the guardianship assets.

David is a 39 year old man with a long and persistent history of serious drug/alcohol problems. As a result of an industrial accident in which he was injured, David received a damage settlement of $300,000. Part of this money was used to purchase a house. About $90,000 was spent on drugs or simply dissipated over the course of two years. The house was damaged to the point that it became uninhabitable. David's sister persuaded David to quit claim the house to their father, Mike, with the understanding that Mike would sell the house and protect the proceeds. Mike sold the house and invested the money. For the next year Mike made gifts to David of food, clothing, money to cover damage deposits on rentals and on one occasion paid $3,000 for a drug treatment program. Regrettably, the treatment was not effective. Throughout the period, David was in chronic crisis, frequently arrested on minor offenses and drug charges, and was in very poor health. Eventually a professional guardian was appointed to protect the balance of the damage settlement funds and to try to get some stability. Mike initially refused to characterize the quit claim on the property as anything but a straightforward transfer, and refused to characterize the money from the sale as anything but his, Mikes, personal property. The guardian persuaded Mike that the guardian could not simply ignore the transfer. They agreed to formalize a trust agreement which the court approved as recognition of a constructive trust. This was satisfactory to Mike, who was appointed trustee. The court overrode David's objection to this arrangement. David preferred that the funds be placed in the guardianship, with the hope of one day of having his capacity and control of estate assets restored.

Often questions are raised as to the content and competence of a will executed by the ward prior to the establishment of the guardianship. A person who knows the natural object of his/her bounty, knows the approximate value and composition of his/her estate and who expresses a preference to execute a will has testamentary capacity. A person can be found to have testamentary capacity who is also found to be unable to manage property.

As a general rule, it is wise for the guardian not to be unduly concerned with the testamentary preferences of the ward. The guardians duty is to manage the estate for the best interests of the ward, not the heirs. The guardian should be aware of heirs as interested parties, but the main concern is the present needs of the ward.

The major reason for this is that the ward is still alive, and should be so treated. It is morbid, literally, and utterly devaluing to the ward for those around him or her to pay a whole lot of attention to distribution of property.

Nevertheless, it is sometimes in the ward's interests to resolve controversy, and the guardian is asked to review the circumstances of the execution of the will. If this is one of the guardian's duties there will almost always be an accompanying review of whether undue influence was involved. A person who has testamentary capacity can be, and often is, subject to undue influence.

At other times, the ward affirmatively wishes to make out a will, and the guardian wishes to support the ward to perform the culturally valued act of putting affairs in order. In this instance, it is prudent to make some record of the wards understanding and capacity to insulate against a future will challenge, or to determine that the ward is not able to make a will. The guardian should be extremely cautious. Once capacity is documented, and the threshold is low, the ward is free to make any bequests s/he wishes. These may not be to everyones liking. More importantly, no one should be allowed to influence the choices of the ward, most especially the guardian. If the ward is to make out a will, it is best to refer the ward to counsel and to avoid participating, or allowing others to influence, the wards consultations with counsel.

Finally, if the ward or family are concerned about the lack of a will, the intestacy provisions of state law should be explained. Many people believe that if one dies intestate, the estate escheats. Often, once the prescribed devolution of estates is explained, the ward and parties are content.

If the guardian is assigned to make some report as to the actions of a previous fiduciary it is necessary to collect all available financial and other records and analyze the possible need to seek some sort of recovery from the previous fiduciary. Sometimes the personal banking records of the former fiduciary need to be examined.

If there are multiple accounts it is wise to employ the services of a bookkeeper experienced in such matters. One valuable technique is to enter transactions on a spreadsheet program that then arranges transactions on all accounts in chronological order. This can be used to highlight transfers between accounts, which can be very informative.

Title companies can easily provide at no cost copies of previous deeds and other materials affecting title to real property. If there are serious concerns, a full title report can be ordered at a cost of about $275.00.

The phrase "best interests of the ward" is easily understood, but can be very difficult to define precisely. There is often ambiguity, and a guardian frequently is not certain what is the best course of action. In a system in which Monday morning quarterbacking is established as a sacred tradition, this can be trying. However, a guardian can not properly avoid a rigorous and creative review of the best way in which to assist the ward. The guardians has the burden of a high level of responsibility to the ward, and it is very unlikely that the alternatives that are safest for the guardian will consistently meet that standard.

Bill and Jenny are an unmarried couple. They have a six month old child, Ann. Jenny stays home with the child. Bill runs a small electronics distributing company he owns. Bill owns the house in which they live, and bank accounts and investments of about $120,000. Bill is killed in an auto accident, leaving no will. A guardian is appointed for Ann, who inherits all of Bill's estate. Washington does not recognize common law marriage. Jenny is devastated by her loss. She finds the new relationship between herself and her daughter to be weird.

To what degree should the guardian consider the mother when attending to the best interests of the ward? From one point of view, the estate assets should be preserved until Ann attains majority, and Jenny should be required to provide for the child in the meantime, even if that means going on welfare. From another point of view, Anns best interests are served by enjoying the lifestyle she would most likely have if a typical family were placed in the same position with similar available assets: meaning Jenny would also benefit from Anns assets. There is a temptation to pick some legal formulation to hide behind so as to avoid tough calls. The fact is, however, that the court will very properly entertain a wide variety of alternatives. If a guardian ad litem reviews and approves the plan as well, there is relatively little risk involved.

Much will depend on what kind of person Jenny is. For example:

Gloria and Amy are mother and daughter in a somewhat similar situation to Jenny and Ann, above. Gloria was a less sympathetic figure than Jenny. Under the terms of the order appointing the guardian for Amy, Gloria was allowed to reside in the home with the child, with an agreement to pay rent and maintain the property. Gloria was a very manipulative person, was an unfit mother, took every opportunity to deplete the estate for her own benefit, trashed the property, neglected the child, and did not pay the rent and proved to be adept at acquiring boyfriends who would move in, seldom for longer than a month. The guardian filed an unlawful detainer action and evicted the mother from the child's home. This precipitated a referral to Childrens Protective Services, the fifth that had been received over the years. The child was placed with the paternal grandparents. Eventually, parental rights were terminated. The mother was last seen accompanying her boyfriend, who was fleeing the state to avoid criminal prosecution.

By no means do all difficult cases involve serious legal questions or frequent recourse to the court. In many cases the personalties and disabilities of the parties are such that there is no reasonable question as to the appropriate conduct of the guardian.

Naomi Butler is convinced that she owns Washington Natural Gas as well as the apartment building in which she has lived for the past 7 years, and so chooses not to pay her rent or utilities. In 1982 she received a direct mail solicitation declaring her to be a member of the Republican Security Committee, a post she regards as roughly comparable to Secretary of State. The guardianship is established at the petition of Adult Protective Services. The guardian quickly accesses bank accounts, pays the debts of the ward, arranges to receive billings and sets up a pattern of monthly visits to the ward. The ward is utterly unreconciled to the guardianship. The guardian has to make several changes of address with insurance companies and utilities before Naomis efforts to change the address back to her fail. At various times the guardian is contacted by Adult Protective Services, the Better Business Bureau, the FBI, the Secret Service, the State Department, AARP, one congressional office, the Mayors Office for Senior Citizens the Seattle PI, the surety on the bond, and the wards aunt, who lives in Minnesota. All are satisfied by the explanations given by the guardian. The ward leaves very long and incoherent voice messages for the ward, the longest of which was 45 minutes. Naomi is immune to the risk of mental commitment, since she cares for herself and offers no risk to herself or others. She firmly and effectively declines all efforts at assistance. She frequently attempts to access the guardianship checking account, and succeeds on one occasion, when the bank computers are down, in withdrawing $475.00.

In a case like this, there is very little that counsel can do to assist the guardian to attain control of the situation, and there is very little concern that any complaint to the court about actions by the guardian will be taken seriously. The guardian does needs to know the limits of coercive authority and the functioning of the mental health system.

In dealing with private businesses and public agencies the guardian must act decisively and with confidence in the authority of the guardian. The guardian must be adept at establishing a rapport with workers in these organizations.

In many difficult family situations, the skills needed most by the guardian are essentially political. Siblings may have deep disagreements among themselves, and the guardian must at all costs avoid the appearance of making decisions to please one faction or another. A spouse or child of the ward amy have an irritating or irascible personal manner that the guardian will need to find a way to cope with.

Sometimes, as the guardian succeeds in resolving the life problems of the ward, a certain level of trust, or at least grudging acceptance, of the guardian is established with potentially adversarial family members. Other times, a family member is simply impossible to please and must be essentially written off by the guardian. It is not always possible to do this in a way that preserves comity.

The relationship with the ward is also sometimes a political one. The drafting of orders can often provide all of the authority that the guardian requires, and still include language that resolves fears the ward may have about unplanned incursions on his/her rights or that enhances the wards self esteem.

Jim had complained bitterly about the establishment of the guardianship after his head injury. Jim wanted most of all to be able to drive a motorcycle. The cognitive deficits that made this very unwise also rendered him unable to complete drivers education or take the test. The order approving an annual accounting included language to the effect that if Jim passed the course and the test and obtained insurance, the guardian was ordered to purchase a motorcycle. On several occasions Jim appeared in the guardian's office looking quite upset, but was mollified quickly by being given a copy of the order.

Arrangements of this sort may have more than the intended effect. Occasionally, a ward who becomes reconciled to the guardianship is able to cooperate with the guardian to the extent that the guardianship can eventually be limited, or the guardian can arrange other enhancements in the ward's life.

A full guardianship of person and estate was ordered for Emily. She had called a handyman to fix a faucet, and he soon convinced her to place him as a signer on all of her bank accounts, totalling about $130,000. Emily was very insulted about being labeled as incapacitated. The guardian soon saw that Emily's health was stable and that she was mostly cooperative, with the help of her daughter, with efforts to assure that her personal needs were met. At the time of the inventory, the guardianship of the person was limited to emergency medical consent and Emily's voluntary acceptance of help from a case manager; which was the only assistance she really required. This was regarded by Emily as a major legal victory, although she was unrepresented and the limits had been suggested by the guardian. Within six months, the guardian had cleared up the bank accounts and was able to make an arrangement under which Emily managed a small checking account from which she paid routine utility and grocery expenses. Duplicate statements and the cancelled checks went to the guardian. Emily felt that she was completely vindicated.

A ward may respond better to a female case manager than a male, or vice versa. Sometimes, the ward responds better to someone whose duties and orientation is in the financial field as opposed to the social sciences.

All of the above reinforces a basic, often forgotten, fact. People with disabilities, no matter how severe, remain complete individuals. Every person has idiosyncratic preferences, strengths, weaknesses and tastes. Only by knowing the ward as an individual can these be discovered and addressed to the advantage of the ward.

Guardianships in which there is a living spouse are almost by definition unusually complicated. A marriage is the most intimate relationship this culture has. A guardian of a spouse is uniquely interposed into this relationship. Even the couples children are, in a way, less closely involved. It is the norm and the usual expectation that should one member of a married couple be incapacitated, the other member will manage things with no need of additional legal authority, and certainly without the involvement of some third party. The guardian of one member of a couple is cast in a somewhat confusing role in which there are unique conditions imposed on the usual relationship between guardian and ward.

Ordinarily, a guardian is thought to have a fiduciary duty exclusively to the ward. However, the guardian must settle just debts and otherwise recognize and respect such legal obligations or relationships as the ward has; the relationship to a spouse included.

The preferred judgement standard when making decisions on behalf of the ward is the substituted judgement standard. That is, the guardian should manage the affairs of the ward in substantially the same way as the ward is known to have preferred. It is natural to assume that a spouse is going to be inclined to defer to the needs and preferences of a marriage partner.

It requires very fine judgement to assess the couples situation, the attitude, preferences and needs of the spouse and the most appropriate way to manage the wards affairs with the above considerations added to the usual duties of a guardian to a ward.

A guardian is generally only appointed for one member of a marriage community when for some reason the more usual arrangement is unworkable. This is when one spouse, while perhaps not legally incompetent, is impaired; when the couple is estranged or the unimpaired spouse is taking undue advantage of the other; or when a spouse acting in good faith is simply not qualified to carry out the fiduciary duties of a guardian.

Charles and Emma had been married for 48 years. They have a daughter, Terri. Until 3 months prior to the petition, Charles had lived in the couples home near Duvall, which the two of them had built with their own hands. Charles was in an advanced stage of Alzheimer's disease, and his behavior had deteriorated to the point that, after several incidents in which the police had to be involved, Charles was civilly committed and finally placed in a locked nursing home unit. Emma objected to anyone but herself being appointed guardian, and went to an attorney. After meeting with Emma and speaking with the GAL, the attorney declined to appear in the matter. The GAL determined that Terri was very apprehensive about having to change her relationship with both parents, particularly her mother. Emma is a fairly articulate person in good health. She keeps her home very neatly, gardens daily and obviously cares well for herself. All of her bills are paid and she balances her checkbook monthly. Emma has strong opinions about her daughters behavior and the guardianship proceedings, which she expresses both civilly and forcefully. The GAL noticed, however, that Emma tends to forget commitments she has made to provide certain records, is vague as to the finances of the couple, is unable to retain technical information about the procedures involved and generally does not appear capable of conducting a guardianship. When the GAL learned that Emma has for some time refused to apply for Social Security Retirement for which she was eligible as Charles' spouse he decided to recommend a professional guardian. The guardian determined in short order that, although an adult family home placement was probably a reasonable goal, the costs would be quite high and would soon deplete the couples assets. Given the grave condition of Charles and the financial considerations, continued nursing home placement was most appropriate. Under Medicaid rules, community assets up to $70,740 can be transferred to Emma in order to qualify Charles for state payment of nursing home care; and all of Charles $1,175 monthly income will be deemed exempt from cost of care requirements. Emma finds this process of dispossessing her husband of all that he worked for to be unacceptable. She states a strong preference to continue to pay privately for his care, at a cost of about $3,000 per month. She is convinced that she would eventually be compensated for this by Medicare and her husband's private insurance, and believes that her failure to accomplish this is due to some bureaucratic snafu. The guardians resolve to transfer large amounts of money to Emma is wavering. In discussing this with Emma it is clear that she has made an arrangement in her mind under which one of her husbands checks, which now comes made out to her, is what she should have, and that the bulk of the couples assets are Charles' and ought to so remain.

The guardian received a call from Charles' physician. Emma had been in to see him and he had been alarmed by her behavior. She had been very agitated and was almost incoherent in her explanation of why she was there. Emma had been driving with an expired license and uninsured for some time. At the insistence of the guardian, she had finally gone in to renew her license and insurance; and the insurer wanted a physician's statement. She stated that she had gone into the first insurance company she saw, and did not know what the rate would be. The physician was very concerned about Emma's ability to take care of herself.

After considerable discussion and persuasion along the lines of "This is what Charles would want", Emma has signed the application for Social Security. The guardian is certain that she will or can not acquire and send to Social Security the necessary documentation, and is doing that for her. Emma grudgingly promised to make no more payments to the nursing home, but several weeks later asked the guardian if he knows why she has received no bill. The bill is going to the guardian.

The guardian met with Emma and suggested that she execute powers of attorney designating someone she trusted to assist her with the funds that were to be transferred. Although Emma concedes that she is "slipping a little" she politely but firmly refuses to consider asking anyone for help, or allowing the guardian to provide the service.

The guardian believes that Emma is a sitting duck. He is sure that despite her abilities and remarkable strength of character she will pay any bill that is sent to her, would be an easy mark for an unscrupulous person, will not pay the slightest attention to any funds transferred to her and will steadfastly refuse to plan for her own future. The guardian is loath to pursue a guardianship as it would most certainly be a contested matter; and would be extremely demeaning to a very proud and accomplished woman.

The guardian's attorney suggests that only half of the couples assets be transferred to Emma, with he other half placed in a trust naming Emma as beneficiary, managed by the guardian.

If the guardian believes the spouse not to be fully capable of managing, the guardian is placed in an awkward position. As suggested above, normally, a spouse manages on behalf of the couple when one is impaired. A corollary to that may be that a guardian of one spouse should manage for both when the presumably competent spouse is not so in fact. The guardian has the same access to bank accounts, for example, as would a member of a marriage community.

In the case of Emma and Charles the guardian made many decisions that would not ordinarily have been considered. The guardian allowed assets of the ward to be transferred to another. The guardian made decisions about residential placement based on considerations beyond the needs and resources of the ward alone. The guardian is expending time billable to the ward identifying the needs and interests of a person other than the ward.

In many of the cases in which a guardian other than the spouse is appointed the unimpaired spouse is not willing to act in the best interests of the ward. The couple may have had a poor relationship for some time. The unimpaired spouse may fail to appreciate the consequences of particular actions.

Grace petitioned for guardianship of her husband Robert. The GAL perceived unveiled hostility on the part of Grace toward her husband, who resided in an adult family home. When confronted about this, Grace said that she and her husband had a poor marriage to begin with and that his extremely difficult behavior prior to being placed out of the home were unbearable to her. The GAL also noted that Gloria had transferred all assets to her sole property, had Robert sign a revocation of the couples community property agreement and had Robert quit claim his interest in the couples real property 3 months prior to initiation of the guardianship. Grace readily conceded that Robert did not understand these documents. Grace continued to claim the income of Robert as income to the marital community. His retirement income was considerably higher than hers. The guardian ad litem recommended a professional guardian be appointed and ordered to investigate, and that the transfers of assets be revoked. Upon investigation the guardian discovered that the communities assets were considerably in excess of those identified in the guardianship petition. The stated intention of the transfers of assets (in this 1988 case) was to obtain eligibility for Medicaid. Robert was in a private facility for which Medicaid was not available. It was very clearly not in Roberts interests to move to a more institutional setting. The guardian believed the adult family home providers to be unqualified, their only virtue being unusually low monthly rates. The guardian recommended that the quitclaim be voided maintaining the wards interest in the property, but allowing the spouse the use of the home. The guardian recommended that the liquid assets be divided equitably between the couple. The court entered orders to this effect and added on its own motion that the guardian was authorized to bring legal action against Grace if necessary. Grace obstructed the guardians efforts to prepare an accurate inventory and brought a series of motions complaining of the guardian's management of the personal care of the ward, minor complaints about various disbursements and similar issues, none of which were ultimately supported by the court. The guardian filed a quiet title action. Ultimately, after considerable expense in professional fees, the guardians third effort to settle the matter succeeded and an agreement that included distribution of real and liquid assets and an equalization formula for sharing the couples income was reached. A month later Grace filed for dissolution of the marriage.

In this instance, the guardian's decision making was not especially clouded by difficulties balancing the interests of the two members of the marriage community. Since one member took an essentially predatory approach to the couples assets, the guardian's duty was fairly clear.

Although it may be obvious that a couples marriage is in effect over, the guardian will rarely do more than suggest to a spouse that dissolution of the marriage is worth considering. The guardian, or the guardian's attorney, may even suggest distribution terms, so that the spouse is aware of his/her choices. But if the spouse is unwilling to terminate the marriage this will almost always be respected.

Nevertheless, in pursing an equitable use of the assets of an estranged couple, the considerations will often be almost identical to those involved in distributing property in the course of a dissolution. The arrangement will, of course, be submitted for approval to the guardianship court, and the court's order may have all of the effect of a legal separation.

In many cases, a spouse's unwillingness to pursue a separation stems from a belief that there is financial advantage to maintaining the marriage. Once the financial arrangements are established, the stage is set for a dissolution.

Couples sometimes choose to maintain a marriage in order to preserve pension or insurance benefits. Unless there is some genuine inequity involved, it is reasonable to respect arrangements of this sort.

It is important to respect the point of view of the spouse, even when there are adversarial relationships. No one chooses to be in a failed marriage. Very often, the spouse has legitimate reasons to lack fidelity to the ward. The ward may have been abusive or neglectful. The spouse may be facing severe financial problems. The spouse may be overwhelmed by conflicting emotions and pressures; and not entirely able to approach the issues at hand in a detached, totally rational manner. Alone, either the developing incapacity of a spouse or the mounting pressures of a failed marriage are enough to strain a person to the breaking point. The combination of these effects can be crazy-making.

Curtis has been guardian of his wife, Sylvia, since 1988. Sylvia is chronically mentally ill with a 30 year history of obsessive-compulsive behavior, severe depression, manic episodes, hallucinations and very bizarre behavior. The couple have three children, all of whom are estranged from Curtis for reasons he cannot comprehend, but which probably stem from his failure to shield them from Sylvia's grotesque child raising techniques. Prior to the involvement of a professional guardian, Sylvia had never been thoroughly examined or treated by a psychiatrist. For the last 18 months, Sylvia has resided in a facility licensed as a boarding home, which operates in a similar manner as a nursing home. One of the couples children, Mark, is also mentally ill, although in an odd way lucid and obviously very intelligent. Over the years he has filed a number of pro se lawsuits against his father for various real estate transactions other arrangements which Curtis unwisely engaged in with him. Mark also filed a petition to be appointed guardian and challenged the residential placement. All of these actions have been clearly frivolous, but competently managed by Mark and very costly to Curtis. Curtis' periodic reports to the court in the guardianship have mostly been done pro se. Although approved by the court at the time, there was no GAL and thus remained open to scrutiny. He has kept virtually no records of his administration of the couples community property, has engaged in transfers of property and has otherwise not shown any understanding of his fiduciary responsibilities. Sylvia is eligible for Social Security retirement on his claim (over $400 per month as it turned out), but someone once told him this would interfere with the health insurance, so he never pursued this. The court finally dismissed all of the lawsuits (which Mark promptly appealed) and appointed a professional co-guardian to assist Curtis to prepare some form of accounting for the entire period of the guardian; and to make a recommendation as to how the property of the couple should be handled. Although Curtis's good faith is accepted by the court and all parties except Mark, his commitment to the marriage appears to be less strong than he says. At the guardian's suggestion, the court also authorized the professional guardian to arrange for psychiatric treatment. Along with a medication regime, the psychiatrist recommends placement in a more suitable facility.

The guardian ultimately recommends that a portion of the couples assets be placed in trust for the benefit of the ward, that there be no action regarding dissolution or separation and that Curtis continue as guardian.

It is, perhaps, unfortunate that the appointment of one spouse as guardian for the other changes the nature of the marriage relationship. In this case the result was that activities that would ordinarily have been Curtis' business and his alone became subject to scrutiny and review by people outside of his family. The court is usually liberal in the standards it applies for reporting and accountability in cases like this, and quite properly so. In the face of a challenge, however, the full array of fiduciary obligations of guardian to ward were enforced.

A spouse handling the affairs of a married couple may keep poor records or make decisions that seem unwise, but it would seldom even occur to anyone that these decisions could be questioned. In the context of a guardianship, there is a readily available forum for such questions.

Sometimes this works to the advantage of the impaired spouse. Sylvia had never been treated for a major mental illness, certainly a questionable proposition. It was to her long term advantage to have this lapse reviewed.

Again, the job of the guardian in a case like this is, essentially, to make up the difference between the capabilities of the guardian and the guardian's fiduciary duties. Unless there is question about the good faith of the spouse, the co-guardian's authority will usually be drawn fairly narrowly. Certainly, if the co-guardian perceives some impropriety or divergence of interests a report should be made to the court.

Attorneys and professional guardians are commonly asked to describe that simple process by which they may impose their judgement on an impaired person to do such things as move out of or into some residential situation, to stop associating with particular people or to take psychiatric medications. Those making such enquiries are often surprised and dismayed to learn that guardians are not given the sort of police power to enforce decisions of this kind. In most guardianship cases, the ward is incapacitated to a degree that there is no likelihood of the guardians choices being frustrated. Very often, the ward is amenable to the assistance of the guardian.

Even in cases in which the ward or others resist the decisions of the guardian, the aura of authority that is popularly conferred on guardians often suffices to discourage challenges of the guardians decisions. This section is directed toward those instances in which the limits of the guardian's authority are tested.

Shiela Anderson was about 25-30 years old, was chronically mentally ill and led the life of a street person. Her mother, unsatisfied to allow her child to persist in this way sought appointment as limited guardian with authority to place Shiela into a 30 day mental health evaluation facility. There can be little question that this would have been in Shiela's best interests. Shiela sought representation and the matter went to the Washington Supreme Court. In 1977 the court found that the guardianship court lacked authority to coerce a residential placement, except under procedures as defined in the Involuntary Treatment Act. For part of this time social service workers were able to persuade Shiela to live in apartment housing. If there was a disturbance of any kind, Shiela would abandon the apartment. She was detained occasionally under the ITA, but never for more than 14 days. While obviously mentally ill, Shiela fed herself, presumably from dumpsters, was not suicidal and did not offer harm to others. She did not want to get her SSI income, which was sent to a professional fiduciary. She refused to leave the area in Seattle bounded by I-5, Highway 99, Union Street and Bell Street. An examination of the street scene on the edges of these borders shows that Shiela's behavior, while strange, was not wholly irrational. Her preferred sleeping place was in crawl spaces under buildings. Most of the time, Shiela successfully evaded efforts to contact her. Shiela died in about 1983.

None of the above is invented. It is possible, and wrong, to romanticize Shiela Anderson as a person who made her life on her own terms, which she certainly did. While Shiela was absolutely a person to respect, it was impossible not to share her mothers wish to somehow offer her a better life. It seems likely that she would be alive today if it had been possible to penetrate her defenses. There is no clearer example of how the limits on the authority of a guardian works.

As will be suggested below, however, Shiela was not a typical in many ways. Her indifference to money is extremely uncommon. Her peculiar mix of mental illness and street craft is also rare. In most instances, a persistent guardian is able to work within our constitutional framework to eventually meet the needs of resistant wards.

Shiela Anderson was not the victim of some gap in the legal system. All in all, it would probably be the lesser good to permit guardians the authority to override the due process requirements mandated in the Anderson decision. The practical problems of guardians implementing authority of this kind are immense.

Guardians are not without authority to impose decisions on wards. Most of this authority rests with the guardian of the estate. In addition, although a guardian of the person may not require the ward to take certain actions, neither may the ward require the guardian to act unwisely. For example:

Colleen is a mentally ill young woman who has been subject to guardianship for 18 months. In that time the guardian assisted her to have her own apartment, and later assisted her to move into a boarding home. On both occasions Colleen kept company with abusive "friends", used drugs, damaged property and was eventually detained under the mental commitment laws. The damage and the costs involved in dealing with the many problems Colleen experienced, and Colleen's frequent attempts to get funds from the guardian were extremely costly. Eventually, pursuant to the ITA she was placed in a court ordered "less restrictive alternative" with mandates that she remain in a mental health group home and take prescribed medications. At the end of the 90 day commitment period, Colleen told the guardian that she chose to leave the facility and rent an apartment. The guardian told Colleen that she would not assist to find an apartment and that if Colleen found one, the guardian would not provide deposits or monthly rent. Despite Colleen's angry denunciations about being denied her rights, she was unable to finance any alternative to the group home. Colleen was informed of her right to counsel, but chose not to participate in what she considered the waste of her funds on legal fees. The guardian told Colleen that when some competent professional recommended a less restrictive placement, the guardian would cooperate fully.

This may be viewed as a violation of Colleen's rights. Consider the position of the guardian, however, if she acceded to Colleen's demands. No reasonable observer would predict a successful outcome, and it was nearly certain that large and unrewarding costs would be imposed on the estate if the guardian agreed. The guardian would be properly criticized for wasting the estate.

Dealing with the ward in a situation like this requires a certain amount of finesse. The guardian wants to avoid demeaning the ward by reciting some litany of past mistakes and problems; and wants to avoid long and circular discussions of unrealistic alternatives. A good approach to take is to require, in essence, a second opinion. The guardian tells the ward that the guardian has exhausted his or her ability to come up with alternatives, cannot and will not rely exclusively on the ward's judgement, but will consider any plan that is supported by any reasonable counselor or social worker that the ward can find. A guardian is obligated to assure that such assistance is available, and if the assets of the ward allow, should make available the services of a private case manager with experience in the disability of the ward. The guardian should in all cases seek to avoid the appearance or fact of a struggle of wills with the ward. The guardian should focus instead on the search for alternatives.

Most of all, the guardian must be extremely careful not to abuse this authority. If it is not completely certain, based on recent and conclusive experience, that the guardian is behaving properly, the guardian must avoid exercising undue coercion of this sort. The guardian should anticipate that the court will review behavior of this sort closely. Depending on the history of the case, it may be advisable for the guardian to schedule a review of the situation.

A guardian of the estate is not often called upon to deal with the issue of personal autonomy in as raw a form as the above, but very commonly restricts the personal choices a person has. The guardian may limit, for sound financial reasons, the amount available to be paid in rent. Obviously, this limits wards, who may be indifferent to the depletion of their estate.

Bill sustained a traumatic brain injury in 1988. His parents were appointed his guardian and retained counsel, who were able to negotiate a damage settlement netting $275,000. At the time of the settlement in early 1991, Bill was adamant that the funds not be placed in a trust, and retained counsel to assert this position. The funds were placed under the control of the guardians. After two years as guardian, the parents sought out a professional to assume this role. He is unrepresented at the hearing on appointment of successor guardian, having discharged his attorney and having failed to find an attorney willing to represent him. Bill is frequently arrested for getting in fights or assaults, usually committed after drinking. Bill is relentlessly demanding of funds. The new guardian ignores all such demands and places Bill on a budget of $50.00 per week spending money, provided in two checks per week. The guardian arranges for prepaid meals at a local restaurant near the inexpensive hotel where Bill lives, having been evicted from every apartment in which he has resided. A bus pass is purchased for Bill. Bill is furious about this. he insists on buying a house, starting a business, moving to Colorado and several other plans. He presents his wishes pro se to the judge who has accepted jurisdiction, and the judge is firm in supporting the guardian.

Although the situation described above is scarcely one that a reasonable person would choose for a ward, the guardian is protecting the assets against dissipation, minimizing the amounts the ward has available for drugs or alcohol and is giving the ward experience with limits on his behavior.

People of all ages and disabilities are at risk of having pre-existing problems exacerbated by use of illegal drugs and alcohol. Many elders have who become impaired have long standing alcoholism, often associated with depression. Alcohol use often contributes to development organic disability. People with head injuries often develop hypersensitivity to levels of drugs/alcohol that were not problematic before the injury. People with mental illness some times use drugs/alcohol as a form of medication to counter various symptoms of their illness. These usually have the long term effect of making the illness worse.

Along with the use of drugs/alcohol often comes association with the drug culture. This is as environment of abuse and manipulation in which a person with impairments is a natural victim. In addition, the ward is likely to the subject of criminal proceedings. Paradoxically, the arrest of the ward can sometimes be to the wards long term advantage. The guardian should work with prosecution and defense counsel to inform them of the medical and treatment history of the ward, and to make drugs/alcohol treatment available.

It is virtually impossible to absolutely prevent a person from using drugs/alcohol. No amount of restriction of available funds will necessarily eliminate the pursuit of addictive behavior or persistence in unfortunate relationships. The guardian can only enforce reasonable restrictions on the amount of money directly available to the ward. The guardian can arrange to pay rent and utilities directly. Most landlords are only too willing to cooperate. The guardian can also arrange to purchase a meal ticket at a convenient restaurant. Landlords and managers of inexpensive hotels can usually offer guidance. A certain amount of pocket money must be provided to the ward. The goal should be to assure that the necessities of life are met, and after that to force the ward to choose between drugs/alcohol and other amenities. A guardian can expect this course of action to be bitterly resented by the ward. The guardian should be certain of the reasonableness of this type of treatment, and is well advised to have or seek court authority.

Other than the sort of manipulation described above, the guardian must look to other authorities if the ward appears in need of imposed restrictions of his/her autonomy. These are available through the criminal justice system and through the civil commitment process.

Returning to the example of Bill:

Eventually, Bill is charged with assaulting a police officer. The guardian contacts the prosecuting attorney, and a deferred sentence is ordered with a requirement that Bill enter an in-patient drug/alcohol program identified by the guardian, that specializes in dual-diagnosed clients.

The police, prosecutors and defense attorneys are usually indifferent to the concerns of a guardian. The establishment of a guardianship is not dealt with or considered relevant to criminal proceedings. The idea of treatment as a part of the criminal justice system has been pretty much abandoned. Defense attorneys are often able to negotiate plea bargains or deferred sentences that are less restrictive of the ward than the guardian seeks, and so have no incentive to seek such treatment. Nevertheless, there are times that a guardian can make the system work to the benefit of the ward, such as that given above. The ward may or may not be motivated to avoid imprisonment. If so, the likelihood of successful treatment is increased considerably.

The ITA prescribes the means by which a persons personal freedom can be restricted due to their mental condition. While the ITA is commonly considered to apply to people with mental illness, it can also be applied to people suffering from mental conditions related to the aging process.

Briefly, the ITA can be used when a person is a danger to self, a danger to others or unable to meet essential life needs due to grave disability. The risk must be due to a "mental condition". The risk involved must be imminent and real.

Even when a guardian is convinced that there is immediate risk, it can be difficult to document this sufficiently to prompt the county's Designated Mental Health Professionals (DMHP) to take action. It is common that several calls over a period of time must be made to the DMHP. The guardian does not want to be perceived as a nuisance, but has a duty to refer matters that seem appropriate to the proper authorities. Very often, the DMHP is sympathetic and understands the validity of the guardian's concerns, but is bound by policy to non-action. Usually, the DMHP will give guidance to the guardian as to what circumstances are likely to prompt more effective action.

If a ward is committed pursuant to the ITA, the guardian should not necessarily expect long term treatment. The ward may or may not be detained for a significant period of time. If the ward is detained for long enough, it is likely that appropriate medication will be administered. This alone is a reasonable goal and can make a very significant difference in the life of the ward. As to long term outpatient mental health treatment, the public resources available are minimal and unreliable.

Most of the examples given above are of young, out of control people. It is also common for guardians to seek to limit or protect older wards who are disabled by dementia, stroke or just poor health and poor judgement. These problems manifest themselves in a number of ways.

Many times a guardian is appointed as part of an effort to resolve problems of an older person who is isolated in a home and refuses all efforts at assistance. Often this is part of a self fulfilling prophecy whereby the elder, fearing placement in an institution, refuses all help, leading to deterioration and ultimate institutionalization.

Hazel is 78, and lives in a small house in West Seattle. her sister, aged 81, has sought appointment of a professional guardian. Hazel leaves the house very rarely, has not been to a doctor in years. She had a small fire from leaving the stove on, which she commonly does. She never allows anyone into her house. The guardian hires a person qualified to provide in-home assistance. Although Hazel initially doesn't let the aide in, they converse through the door. The aide gets groceries, which Hazel accepts. Eventually, they become friends, and Hazel begins to accept assistance.

While this seems like a too-good-to-be-true story, the value of one sustained and consistent personal relationship cannot be over-estimated. The way our social service system operates, there is a very small likelihood that there will be any continuity in personal or agency contact with a client. Taking the time to simply get to know the elder's story and providing something, anything, valued by the elder is almost always rewarded in some degree.

If this does not work, it is often necessary to wait for some emergency. If the client's risk from illness or self induced hazards is sufficient, a mental commitment is sometimes possible.

Paradoxically, it is sometimes the case that family members have tried everything and failed to gain the cooperation of the elder, but the sustained interest of a non-family member is successful. This can happen when there are long running tensions within the family; when the family member, although well intentioned, is inept or when the elder is simply unable to accept help from someone thought of as a child.

The single most difficult decision a guardian ordinarily makes is to place the ward in a nursing home. Virtually no one wants to enter a facility of any kind. Even placement in a relatively home-like, noninstitutional setting can be difficult when the ward rejects the notion of living anyplace but at home. The ward will very seldom believe that any residential placement will be anything but an institution.

This section assumes that the guardian will seek less institutional resources before seeking placement in nursing care, and that the guardian has made efforts to assure that the placement is the least restrictive and best available alternative for the ward.

Difficulties implementing a decision to effect residential placement almost always come when the ward is unwilling to leave his or her home.

Sometimes, the ward is angry or fearful about a placement, and makes all manner of statements that s/he will just not go. The guardian can have adult family home providers visit the ward at home, sometimes more than once, and can arrange day visits to an adult family home. Wards who are being cared for at home are sometimes placed in adult family homes for a day or two to provide respite for the care givers, or if there is a problem with scheduling. If the facility is relatively pleasant, and the other residents somewhat companionable such efforts may demonstrate that placement out of the home may not be as unpleasant as it seems.

Sometimes, the guardian must be authoritative in telling the ward that there are no reasonable alternatives and that the time has simply come.

Edna's guardian had been assisting her for 18 months to live at home with the help of live-in caregivers. Her care was difficult to manage, and several care-givers had quit. At 3:00 pm one Friday, the guardian got a call from the caregiver saying she was quitting and was walking out the door. The guardian could not locate a replacement on short notice, but did find a highly capable adult family home provider who had a vacancy. The guardian went to Edna and told her the plan. Edna refused to go, convinced this was a ploy to put her in some terrible institution. The guardian said, "Edna, I'm your guardian, and I'm telling you that you can't stay here alone, I can't find someone to be here with you and you have no choice but to go." Edna blinked first. When the guardian checked with Edna on Monday, she asked if she could stay another week. The placement ended up being permanent.

Only the name in this example is invented. Many times it is the fears of the ward and not the reality of the facility that must be overcome. The guardian in this instance came very close to lying to the ward as to the extent of his authority.

There are times when physical force would be the only means of extracting a person from his/her home and, for one reason or another, mental commitment is not an alternative. Sometimes, the guardian is in the uncomfortable position of watching and waiting. Sometimes, the guardian must wait for the ward to be hospitalized for some medical emergency. Generally, once the ward is out of the home, a placement is much easier to accomplish. A person who would resist being taken from their home is less fervent about a hospital discharge.

The ITA system is not really designed with the needs of the elderly population in mind, but can accessed in certain situations.

Elders with dementing conditions who act out violently are sometimes detained. The referral to the ITA system may come from a relative or from staff of residential facilities.

These referrals often occur after the ward's physician, or a series of physicians, have prescribed various courses of medication treatment, with decreasing effectiveness. Medicating the behavior of older people, and especially people with dementia, is a special skill. Older people sometimes metabolize medications unpredictably. The efficacy of medication will vary depending on the severity and type of dementia.

If the problems are severe enough to justify long term detention within the mental health system, it is likely that the elder will be placed at Western State Hospital. Western has a unit designed specifically for impaired elders, and has a very good record of sorting out the various medical problems and determining effective medication regimes.

Sometimes elders living in marginal circumstances in their homes can be shown to have an immediate and plausible expectation of harm. If the ITA is brought to bear, the guardian will want to interact closely with the staff of the facility to which the ward is committed. The incentive within the system is to arrange a discharge as quickly as possible. This is the right of the detainee, is expedient and is less costly to the ITA system. It is common for the civil commitment court to order "less restrictive alternatives". These may be requirements that the subject of the proceedings agree to accept assistance in home or agree to take prescribed medications. The court also has the authority to require the person to reside in a facility.

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