Background:

A guardian is an individual or entity appointed and empowered by the court to make decisions for either the person or the estate, or both, of an incapacitated person. A person may be deemed incapacitated when the court determines that there is a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety. Incapacity as to the person's estate means the person is at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs. If a person is incapacitated in some aspects, but not others, a limited guardian may be appointed over the person, the estate, or both, to make decisions regarding the areas in which the person is incapacitated.

Office of Public Guardianship.

In 2007 the Office of Public Guardianship (OPG) was created within the Administrative Office of the Courts to provide public guardianship services to incapacitated individuals who need the services of a guardian and for whom adequate services may be otherwise unavailable. To be eligible for a public guardian, incapacitated individuals must: 1) be over 18 years of age and have incomes less than 200 percent of the federal poverty level; or 2) be receiving long-term care services through the Department of Social and Health Services. Initial implementation of the public guardianship program was on a pilot basis. To date there are 10 programs in the following counties: Clallam; Grays Harbor; King; Okanogan; Pierce; Snohomish; Spokane; Clark; Kitsap; and Thurston.

A public guardian is a certified professional guardian who contracts with the OPG to provide services to low income individuals. A public guardian must be certified by the Certified Professional Guardian Board and must meet minimum standards of practice adopted by the OPG. Any entity providing professional guardianship services to more than 20 incapacitated persons per certified professional guardian may not be compensated for public guardian services.

Estate Administration.

After the entry of an order admitting a will to probate and appointing a personal representative, letters of administration are granted by the court to the person appointed. In the case of a decedent who dies without a will, or if the personal representative named in a will declines or is unable to serve, a statute specifies the order of persons to serve as follows:

surviving spouse or state registered domestic partner, or such person as he or she may request to have appointed;
next of kin, in the specified order;
trustee, guardian, or attorney-in-fact, if any such fiduciary controlled or potentially controlled substantially all of the decedent's probate and nonprobate assets;
one or more of the beneficiaries or transferees of the decedent's probate or nonprobate assets;
director of the Department of Revenue, or the director's designee, for estates subject to laws regarding escheat property, which is property that reverts to the state;
secretary of the Department of Social and Health Services for estates owing debts for long-term care services;
one or more of the principal creditors.

The court may appoint any suitable person to administer the estate if none of the above persons petition for letters of administration, as well as in certain other circumstances.

Summary of Bill:

Office of Public Guardianship.

The Office of Public Guardianship (OPG) is authorized to establish a program that includes supported decisionmaking assistance and estate administration, in addition to public guardianship. "Supported decisionmaking assistance" means support for an individual with diminished decisionmaking ability in making decisions affecting health or safety or to manage financial affairs. Assistance includes, without limitation, acting as a representative payee, an attorney-in-fact, a trustee, and a public guardian.

"Representative payee" means the designated agent for a recipient of government benefits whom a government agency has determined to be incapable of managing his or her benefits.
"Attorney-in-fact" means an agent authorized by an individual to act on his or her behalf pursuant to a power of attorney.
"Trustee" means a person or organization named in a trust agreement to handle trust property for the benefit of one or more beneficiaries in accordance with the terms of the agreement.

Eligibility criteria for supported decisionmaking and estate administration services is the same as for public guardianship services. In addition, other categories of persons are eligible for fee-based services:

Supported decisionmaking services are available to persons age 18 or older when there is no one else qualified who is willing and able to serve.
Estate administration services are available in the case of decedents age 18 or older, in circumstances where a service provider under contract with the OPG is granted letters of administration. Fees may be collected from the estate of persons whose income exceeds 200 percent of the federal poverty level, determined annually by the United States Department of Health and Human Services, based on a fee schedule established by the OPG that must be published annually.

Provisions found within the laws governing the OPG pertaining to the pilot nature of the program and reports from the OPG and the Washington Institute of Public Policy are stricken. References to a repealed section and a chapter that no longer exists in code are also stricken.

Estate Administration.

In circumstances in which a court may appoint any suitable person to administer an estate, the court may appoint a service provider under contract with the OPG.