BP BHEAD INT H

AN ACT Relating to guardians and guardians ad litem for minors and incapacitated persons; amending RCW 2.56.030, 4.08.060, 8.25.270, 11.16.083, 11.52.014, 11.52.020, 11.76.080, 11.92.190, 11.96.180, 13.24.050, 13.34.100, 13.34.120, 26.12.175, 26.26.140, 26.33.070, 26.44.053, 65.12.145, 90.03.150, 91.08.230, 11.88.005, 11.88.010, 11.88.020, 11.88.030, 11.88.040, 11.88.045, 11.88.090, and 11.88.095; adding a new section to chapter 2.56 RCW; adding new sections to chapter 11.88 RCW; adding new sections to chapter 13.34 RCW; adding new sections to chapter 26.12 RCW; and creating new sections.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. It is the intent of this act to make improvements to the guardian and guardian ad litem systems currently in place for the protection of minors and incapacitated persons.

Sec. 2. RCW 2.56.030 and 1994 c 240 s 1 are each amended to read as follows:

The administrator for the courts shall, under the supervision and direction of the chief justice:

(1) Examine the administrative methods and systems employed in the offices of the judges, clerks, stenographers, and employees of the courts and make recommendations, through the chief justice, for the improvement of the same;

(2) Examine the state of the dockets of the courts and determine the need for assistance by any court;

(3) Make recommendations to the chief justice relating to the assignment of judges where courts are in need of assistance and carry out the direction of the chief justice as to the assignments of judges to counties and districts where the courts are in need of assistance;

(4) Collect and compile statistical and other data and make reports of the business transacted by the courts and transmit the same to the chief justice to the end that proper action may be taken in respect thereto;

(5) Prepare and submit budget estimates of state appropriations necessary for the maintenance and operation of the judicial system and make recommendations in respect thereto;

(6) Collect statistical and other data and make reports relating to the expenditure of public moneys, state and local, for the maintenance and operation of the judicial system and the offices connected therewith;

(7) Obtain reports from clerks of courts in accordance with law or rules adopted by the supreme court of this state on cases and other judicial business in which action has been delayed beyond periods of time specified by law or rules of court and make report thereof to supreme court of this state;

(8) Act as secretary of the judicial conference referred to in RCW 2.56.060;

(9) Formulate and submit to the judicial council of this state recommendations of policies for the improvement of the judicial system;

(10) Submit annually, as of February 1st, to the chief justice and the judicial council, a report of the activities of the administrator's office for the preceding calendar year;

(11) Administer programs and standards for the training and education of judicial personnel;

(12) Examine the need for new superior court and district judge positions under a weighted caseload analysis that takes into account the time required to hear all the cases in a particular court and the amount of time existing judges have available to hear cases in that court. The results of the weighted caseload analysis shall be reviewed by the board for judicial administration and the judicial council, both of which shall make recommendations to the legislature ((~~by January 1, 1989~~)). It is the intent of the legislature that weighted caseload analysis become the basis for creating additional district court positions, and recommendations should address that objective;

(13) Provide staff to the judicial retirement account plan under chapter 2.14 RCW;

(14) Attend to such other matters as may be assigned by the supreme court of this state;

(15) Within available funds, develop a curriculum for a general understanding of child development, placement, and treatment resources, as well as specific legal skills and knowledge of relevant statutes including chapters 13.32A, 13.34, and 13.40 RCW, cases, court rules, interviewing skills, and special needs of the abused or neglected child. This curriculum shall be completed and made available to all juvenile court judges, court personnel, and service providers ((~~by July 1, 1988. The curriculum shall~~)) and be updated yearly to reflect changes in statutes, court rules, or case law;

(16) Develop, in consultation with all public benefit nonprofit corporations that are eligible to receive state funds under RCW 43.330.135, a comprehensive state-wide curriculum for all persons who act as guardians ad litem under Title 13 or 26 RCW. The curriculum shall be made available January 1, 1997, and include specialty sections on child development, child sexual abuse, child physical abuse, child neglect, investigative and interviewing techniques, and relevant statutory and legal requirements. The curriculum shall be made available to all superior court judges, court personnel, and all persons who act as guardians ad litem;

(17) Develop a curriculum for a general understanding of crimes of malicious harassment, as well as specific legal skills and knowledge of RCW 9A.36.080, relevant cases, court rules, and the special needs of malicious harassment victims. This curriculum shall be ((~~completed and~~)) made available to all superior court and court of appeals judges and to all justices of the supreme court ((~~by July 1, 1989~~));

((~~(17)~~)) (18) Develop, in consultation with the criminal justice training commission and the commissions established under chapters 43.113, 43.115, and 43.117 RCW, a curriculum for a general understanding of ethnic and cultural diversity and its implications for working with youth of color and their families. The curriculum shall be ((~~completed and made~~)) available to all superior court judges and court commissioners assigned to juvenile court, and other court personnel ((~~by October 1, 1993~~)). Ethnic and cultural diversity training shall be provided annually so as to incorporate cultural sensitivity and awareness into the daily operation of juvenile courts state-wide;

((~~(18)~~)) (19) Authorize the use of closed circuit television and other electronic equipment in judicial proceedings. The administrator shall promulgate necessary standards and procedures and shall provide technical assistance to courts as required.

NEW SECTION. Sec. 3. A new section is added to chapter 2.56 RCW to read as follows:

(1) The administrator for the courts shall develop a plan for the state-wide mandatory use of court-appointed special advocates as described in RCW 26.12.175 to act as guardians ad litem in all cases under Titles 13 and 26 RCW. The plan shall include recommendations regarding the increase of court fees or assessments as necessary to fully fund the implementation and continuation of the plan.

(2) The administrator shall also conduct a study on the feasibility and desirability of requiring all persons who act as guardians ad litem under Titles 11, 13, and 26 RCW to be certified as qualified guardians ad litem prior to their eligibility for appointment.

(3) In developing the plan and conducting the study the administrator shall consult with: (a) The presidents or directors of all public benefit nonprofit corporations that are eligible to receive state funds under RCW 43.330.135; (b) the attorney general, or a designee; (c) the secretary of the department of social and health services, or a designee; (d) the superior court judges association; (e) the Washington state bar association; (f) public defenders who represent children under Title 13 or 26 RCW; (g) private attorneys who represent parents under Title 13 or 26 RCW; (h) professionals who evaluate families for the purposes of determining the custody or placement decisions of children; (i) the office of financial management; (j) persons who act as volunteer guardians ad litem; and (k) parents who have dealt with guardians ad litem in court cases. For the purposes of studying the feasibility of a certification requirement for guardians ad litem acting under Title 11 RCW the administrator shall consult with the advisory group formed under RCW 11.88.090.

NEW SECTION. Sec. 4. The plan and study required under section 3 of this act shall be presented to the governor and to the appropriate committees of the legislature no later than December 1, 1996.

Sec. 5. RCW 4.08.060 and 1899 c 91 s 1 are each amended to read as follows:

When an ((~~insane~~)) incapacitated person, as defined in RCW 11.88.010, is a party to an action in the superior courts he or she shall appear by guardian, or if he or she has no guardian, or in the opinion of the court the guardian is an improper person, the court shall appoint one to act as guardian ad litem. Said guardian shall be appointed as follows:

(1) When the ((~~insane~~)) incapacitated person is plaintiff, upon the application of a relative or friend of the ((~~insane~~)) incapacitated person.

(2) When the ((~~insane~~)) incapacitated person is defendant, upon the application of a relative or friend of such ((~~insane~~)) incapacitated person, such application shall be made within thirty days after the service of summons if served in the state of Washington, and if served out of the state or service is made by publication, then such application shall be made within sixty days after the first publication of summons or within sixty days after the service out of the state. If no such application be made within the time above limited, application may be made by any party to the action.

Sec. 6. RCW 8.25.270 and 1977 ex.s. c 80 s 12 are each amended to read as follows:

When it ((~~shall~~)) appears in any petition or otherwise at any time during the proceedings for condemnation brought pursuant to chapters 8.04, 8.08, 8.12, 8.16, 8.20, and 8.24 RCW((~~, each as now or hereafter amended,~~)) that any ((~~infant~~)) minor, or ((~~allegedly incompetent or disabled~~)) alleged incapacitated person, as defined in RCW 11.88.010, is interested in any property that is to be taken or damaged, the court shall appoint a guardian ad litem for ((~~such infant~~)) the minor or ((~~allegedly incompetent or disabled~~)) alleged incapacitated person to appear and assist in ((~~his, her or their~~)) the person's defense, unless a guardian or limited guardian has previously been appointed, in which case the duty to appear and assist shall be delegated to the properly qualified guardian or limited guardian. The court shall make such orders or decrees as it shall deem necessary to protect and secure the interest of the ((~~infant~~)) minor or ((~~allegedly incompetent or disabled~~)) alleged incapacitated person ((~~in the property sought to be condemned or the compensation which shall be awarded therefore~~)).

Sec. 7. RCW 11.16.083 and 1977 ex.s. c 234 s 1 are each amended to read as follows:

Notwithstanding any other provision of this title, no notice of any hearing in probate or probate proceeding need be given to any legally competent person who is interested in any hearing in any probate as an heir, legatee, or devisee of the decedent who has in person or by attorney waived in writing notice of such hearing or proceeding. Such waiver of notice may apply to either a specific hearing or proceeding, or to any and all hearings and proceedings to be held during the administration of the estate in which event such waiver of notice shall be of continuing effect unless subsequently revoked by the filing of a written notice of revocation of the waiver and the mailing of a copy thereof to the personal representative and his or her attorney. Unless notice of a hearing is required to be given by publication, if all persons entitled to notice thereof shall have waived such notice, the court may hear the matter forthwith. A guardian of the estate or a guardian ad litem may make such waivers on behalf of ((~~his incompetent~~)) an incapacitated person, as defined in RCW 11.88.010, and a trustee may make such waivers on behalf of any competent or ((~~incompetent~~)) incapacitated beneficiary of his or her trust. A consul or other representative of a foreign government, whose appearance has been entered as provided by law on behalf of any person residing in a foreign country, may make such waiver of notice on behalf of such person. Any person who submits to the jurisdiction of the court in any hearing shall be deemed to have waived notice thereof.

Sec. 8. RCW 11.52.014 and 1965 c 145 s 11.52.014 are each amended to read as follows:

Notice of such hearing shall be given in the manner prescribed in RCW 11.76.040. If there be any ((~~incompetent~~)) heir who is an incapacitated person, as defined in RCW 11.88.010, of the decedent, the court shall appoint a guardian ad litem for such ((~~incompetent~~)) heir, who shall appear at the hearing and represent the interest of ((~~such incompetent~~)) the heir.

Sec. 9. RCW 11.52.020 and 1985 c 194 s 2 are each amended to read as follows:

In event a homestead has been, or shall be selected in the manner provided by law, whether the selection of such homestead results in vesting the complete or partial title in the survivor, it shall be the duty of the court, upon petition of any person interested, and upon being satisfied that the value thereof does not exceed at the time of the death the amount specified in RCW 11.52.010, exclusive of general taxes and special assessments which were liens at the time of the death of the deceased and exclusive of the unpaid balance of any contract to purchase, mortgage, or mechanic's, laborer's, or materialmen's liens thereon, and exclusive of funeral expenses, expenses of last sickness and of administration, which expenses may be deducted from the gross value in determining the value to be set off to the surviving spouse, to enter a decree, upon notice as provided in RCW 11.52.014 or upon longer notice if the court so orders, setting off and awarding such homestead to the survivor, thereby vesting the title thereto in fee simple in the survivor: PROVIDED, That if there be any ((~~incompetent~~)) heir((s)) who is an incapacitated person, as defined in RCW 11.88.010, of the decedent, the court shall appoint a guardian ad litem for ((~~such incompetent~~)) the heir who shall appear at the hearing and represent the interest of ((~~such incompetent~~)) the heir.

Sec. 10. RCW 11.76.080 and 1977 ex.s. c 80 s 15 are each amended to read as follows:

If there be any alleged ((~~incompetent or disabled~~)) incapacitated person as defined in RCW 11.88.010 interested in the estate who has no legally appointed guardian or limited guardian, the court:

(1) At any stage of the proceeding in its discretion and for such purpose or purposes as it shall indicate, may, and

(2) For hearings held pursuant to RCW 11.52.010, 11.52.020, 11.68.040 and 11.76.050, ((~~each as now or hereafter amended,~~)) or for entry of an order adjudicating testacy or intestacy and heirship when no personal representative is appointed to administer the estate of the decedent, shall appoint some disinterested person as guardian ad litem to represent such((~~allegedly incompetent or disabled~~)) alleged incapacitated person with reference to any petition, proceeding report, or adjudication of testacy or intestacy without the appointment of a personal representative to administer the estate of decedent in which the alleged ((~~incompetent or disabled~~)) incapacitated person may have an interest, who, on behalf of the alleged ((~~incompetent or disabled~~)) incapacitated person, may contest the same as any other person interested might contest it, and who shall be allowed by the court reasonable compensation for his or her services: PROVIDED, HOWEVER, That where a surviving spouse is the sole beneficiary under the terms of a will, the court may grant a motion by the personal representative to waive the appointment of a guardian ad litem for a person who is the minor child of such surviving spouse and the decedent and who is incompetent solely for the reason of ((~~his~~)) being under eighteen years of age.

NEW SECTION. Sec. 11. A new section is added to chapter 11.88 RCW to read as follows:

(1) Any party or attorney to an action under this title may file a motion of prejudice regarding the appointment of a guardian ad litem. The motion shall be supported by an affidavit stating the guardian is prejudiced against the party or attorney and the party or attorney cannot, or believes they cannot, have a fair and impartial investigation by the guardian ad litem. The motion and affidavit shall be filed within five days of receipt of the notice of the appointment or receipt of the background information report required under RCW 11.88.090, whichever is later. A party or attorney may not file more than one affidavit of prejudice against a guardian ad litem in any action. The first such motion filed by any party shall be automatically granted.

(2) The filing of a motion of prejudice shall not prevent the guardian ad litem from acting in an emergency, upon court approval, until a subsequent guardian ad litem has been appointed.

(3) No practicing attorney may be appointed to act as guardian ad litem under this title, if the attorney also acts as judge pro tempore or commissioner pro tempore in the superior court.

Sec. 12. RCW 11.92.190 and 1977 ex.s. c 309 s 14 are each amended to read as follows:

No residential treatment facility which provides nursing or other care may detain a person within such facility against ((~~their~~)) his or her will. Any court order, other than an order issued in accordance with the involuntary treatment provisions of chapters 10.77, 71.05, and 72.23 RCW, which purports to authorize such involuntary detention or purports to authorize a guardian or limited guardian to consent to such involuntary detention on behalf of an ((~~incompetent or disabled~~)) incapacitated person shall be void and of no force or effect. This section does not apply to the detention of a minor upon the application of a parent under chapter 70.96A or 71.34 RCW.

Nothing in this section shall be construed to require a court order authorizing placement of an ((~~incompetent or disabled~~)) incapacitated person in a residential treatment facility if such order is not otherwise required by law: PROVIDED, That notice of any residential placement of an ((~~incompetent or disabled~~)) incapacitated person shall be served, either before or after placement, by the guardian or limited guardian on such person, the guardian ad litem of record, and any attorney of record.

Sec. 13. RCW 11.96.180 and 1994 c 221 s 64 are each amended to read as follows:

(1) The court, upon its own motion or on request of any one or more of the required parties to the dispute as that term is defined in RCW 11.96.170(6)(c), at any stage of a judicial proceeding or at any time in a nonjudicial resolution procedure, may appoint a guardian ad litem to represent the interests of a minor, incapacitated, unborn, or unascertained person, or person whose identity or address is unknown, or a designated class of persons who are not ascertained or are not in being. When not precluded by a conflict of interest, a guardian ad litem may be appointed to represent several persons or interests. The guardian ad litem shall meet the requirements of, and be appointed in accordance with, RCW 11.88.090.

(2) The court-appointed guardian ad litem supersedes the special representative if so provided in the court order.

(3) The court may appoint the guardian ad litem at an ex parte hearing, or the court may order a hearing as provided in RCW 11.96.070 with notice as provided in RCW 11.96.080, 11.96.100, and 11.96.110.

Sec. 14. RCW 13.24.050 and 1955 c 284 s 5 are each amended to read as follows:

Any judge of this state who appoints counsel or guardian ad litem pursuant to the provision of the compact may, in his or her discretion, fix a fee to be paid out of funds available for disposition by the court but no such fee shall exceed ((~~twenty-five dollars~~)) the rate as established pursuant to section 28 of this act.

NEW SECTION. Sec. 15. A new section is added to chapter 13.34 RCW to read as follows:

(1) Any party or attorney to an action under this title may file a motion of prejudice regarding the appointment of a guardian ad litem. The motion shall be supported by an affidavit stating the guardian is prejudiced against the party or attorney and the party or attorney cannot, or believes they cannot, have a fair and impartial investigation by the guardian ad litem. The motion and affidavit shall be filed within five days of receipt of the notice of the appointment or receipt of the background information report required under RCW 13.34.100, whichever is later. A party or attorney may not file more than one affidavit of prejudice against a guardian ad litem in any action. The first such motion filed by any party shall be automatically granted.

(2) The filing of a motion of prejudice shall not prevent the guardian ad litem from acting in an emergency, upon court approval, until a subsequent guardian ad litem has been appointed.

(3) No practicing attorney may be appointed to act as guardian ad litem under this title, if the attorney also acts as judge pro tempore or commissioner pro tempore in the superior court.

NEW SECTION. Sec. 16. A new section is added to chapter 26.12 RCW to read as follows:

(1) Any party or attorney to an action under this title may file a motion of prejudice regarding the appointment of a guardian ad litem. The motion shall be supported by an affidavit stating the guardian is prejudiced against the party or attorney and the party or attorney cannot, or believes they cannot, have a fair and impartial investigation by the guardian ad litem. The motion and affidavit shall be filed within five days of receipt of the notice of the appointment or receipt of the background information report required under RCW 26.12.175 or 26.44.053, whichever is later. A party or attorney may not file more than one affidavit of prejudice against a guardian ad litem in any action. The first such motion filed by any party shall be automatically granted.

(2) The filing of a motion of prejudice shall not prevent the guardian ad litem from acting in an emergency, upon court approval, until a subsequent guardian ad litem has been appointed.

(3) No practicing attorney may be appointed to act as guardian ad litem under this title, if the attorney also acts as judge pro tempore or commissioner pro tempore in the superior court.

Sec. 17. RCW 13.34.100 and 1994 c 110 s 2 are each amended to read as follows:

(1) The court shall appoint a guardian ad litem for a child who is the subject of an action under this chapter, unless a court for good cause finds the appointment unnecessary. The requirement of a guardian ad litem may be deemed satisfied if the child is represented by independent counsel in the proceedings.

(2) If the court does not have available to it a guardian ad litem program with a sufficient number of volunteers, the court may appoint a suitable person to act as guardian ad litem for the child under this chapter. Another party to the proceeding or the party's employee or representative shall not be so appointed.

(3) Each guardian ad litem program shall maintain a background information record for each guardian ad litem in the program. The background file shall include, but is not limited to, the following information:

(a) Level of formal education;

(b) Training related to the guardian's duties;

(d) Number of appointments as a guardian ad litem and the county or counties of appointment; ((~~and~~))

(e) Number of complaints against the guardian ad litem, filed with the guardian ad litem program, the Washington state bar association, or the superior court, including the nature of the complaint and its resolution;

(f) Number of affidavits of prejudice, if any, filed against the guardian ad litem, including the number per year and the county in which it was filed; and

(g) Criminal history, as defined in RCW 9.94A.030. The background statement shall not include identifying information that may be used to harm a guardian ad litem, such as home addresses and home telephone numbers, and for volunteer guardians ad litem the court may allow the use of maiden names or pseudonyms as necessary for their safety.

The background information report shall be updated annually. As a condition of appointment, the guardian ad litem's background information record shall be made available to the court, and immediately provided to the parties or their attorneys. If the appointed guardian ad litem is not a member of a guardian ad litem program the person shall immediately provide the required background information to the court, and to the parties or their attorneys. The guardian ad litem program shall immediately file the notice of appointment and background statement with the court and send copies to the parties.

(4) The appointment of the guardian ad litem shall remain in effect until the court discharges the appointment or no longer has jurisdiction, whichever comes first. The guardian ad litem may also be discharged upon entry of an order of guardianship.

(5) A guardian ad litem through counsel, or as otherwise authorized by the court, shall have the right to present evidence, examine and cross-examine witnesses, and to be present at all hearings. A guardian ad litem shall receive copies of all pleadings and other documents filed or submitted to the court, and notice of all hearings according to court rules. The guardian ad litem shall receive all notice contemplated for a parent or other party in all proceedings under this chapter.

(6) If the child requests legal counsel and is age twelve or older, or if the guardian ad litem or the court determines that the child needs to be independently represented by counsel, the court may appoint an attorney to represent the child's position.

(7) For the purposes of child abuse prevention and treatment act (42 U.S.C. Secs. 5101 et seq.) grants to this state under P.L. 93-247, or any related state or federal legislation, a person appointed pursuant to RCW 13.34.100 shall be deemed a guardian ad litem to represent the best interests of the minor in proceedings before the court.

Sec. 18. RCW 13.34.120 and 1994 c 288 s 2 are each amended to read as follows:

(1) To aid the court in its decision on disposition, a social study, consisting of a written evaluation of matters relevant to the disposition of the case, shall be made by the person or agency filing the petition. The study shall include all social records and may also include facts relating to the child's cultural heritage, and shall be made available to the court. The court shall consider the social file, social study, guardian ad litem report, the court-appointed special advocate's report, if any, and any reports filed by a party at the disposition hearing in addition to evidence produced at the fact-finding hearing. At least ten working days before the disposition hearing, the department shall mail to the parent and his or her attorney a copy of the agency's social study and proposed service plan, which shall be in writing or in a form understandable to the parents or custodians. In addition, the department shall provide an opportunity for parents to review and comment on the plan at the community service office. If the parents disagree with the agency's plan or any part thereof, the parents shall submit to the court at least twenty-four hours before the hearing, in writing, or signed oral statement, an alternative plan to correct the problems which led to the finding of dependency. This section shall not interfere with the right of the parents or custodians to submit oral arguments regarding the disposition plan at the hearing.

(2) In addition to the requirements set forth in subsection (1) of this section, a predisposition study to the court in cases of dependency alleged pursuant to RCW ((~~13.34.030(2)~~)) 13.34.030(4) (b) or (c) shall contain the following information:

(a) A statement of the specific harm or harms to the child that intervention is designed to alleviate;

(b) A description of the specific programs, for both the parents and child, that are needed in order to prevent serious harm to the child; the reasons why such programs are likely to be useful; the availability of any proposed services; and the agency's overall plan for ensuring that the services will be delivered;

(c) If removal is recommended, a full description of the reasons why the child cannot be protected adequately in the home, including a description of any previous efforts to work with the parents and the child in the home; the in-home treatment programs which have been considered and rejected; the preventive services that have been offered or provided and have failed to prevent the need for out-of-home placement, unless the health, safety, and welfare of the child cannot be protected adequately in the home; and the parents' attitude toward placement of the child;

(d) A statement of the likely harms the child will suffer as a result of removal. This section should include an exploration of the nature of the parent-child attachment and the meaning of separation and loss to both the parents and the child;

(e) A description of the steps that will be taken to minimize harm to the child that may result if separation occurs; and

(f) Behavior that will be expected before determination that supervision of the family or placement is no longer necessary.

Sec. 19. RCW 26.12.175 and 1993 c 289 s 4 are each amended to read as follows:

(1)(a) The court may appoint a guardian ad litem to represent the interests of a minor or dependent child when the court believes the appointment of a guardian ad litem is necessary to protect the best interests of the child in any proceeding under this chapter. The family court services professionals may also make a recommendation to the court regarding whether a guardian ad litem should be appointed for the child. The court may appoint a guardian ad litem from the court-appointed special advocate program, if that program exists in the county.

(b) Unless otherwise ordered, the guardian ad litem's role is to investigate and report to the court concerning parenting arrangements for the child, and to represent the child's best interests. The guardian ad litem shall provide periodic reports to the court and the parties regarding the status of the guardian ad litem's investigation and the guardian ad litem's periodic findings and recommendations. The report shall be provided at least every three months. The interim actions of a guardian ad litem are revisable by the court upon the motion of a party.

(c) The court shall enter an order for costs, fees, and disbursements to cover the costs of the guardian ad litem in accordance with the fee schedule established pursuant to section 28 of this act. The court may order either or both parents to pay for the costs of the guardian ad litem, according to their ability to pay. If both parents are indigent, the county shall bear the cost of the guardian, subject to appropriation for guardians' ad litem services by the county legislative authority. Guardians ad litem who are not volunteers shall provide the parties with monthly itemized accountings of their time and billings for services.

(2)(a) If the guardian ad litem appointed is from the county court-appointed special advocate program, the program shall supervise any guardian ad litem assigned to the case. The court-appointed special advocate program shall be entitled to notice of all proceedings in the case.

(b) The legislative authority of each county may authorize creation of a court-appointed special advocate program. The county legislative authority may adopt rules of eligibility for court-appointed special advocate program services.

(a) Level of formal education;

(b) Training related to the guardian's duties;

(d) Number of appointments as a guardian ad litem and county or counties of appointment; ((~~and~~))

(e) Number of complaints against the guardian ad litem, filed with the guardian ad litem program, the Washington state bar association, or the superior court, and including the nature of the complaint and its resolution;

(f) Number of affidavits of prejudice, if any, filed against the guardian ad litem, including the number per year and the county in which it was filed; and

Sec. 20. RCW 26.26.140 and 1994 c 146 s 4 are each amended to read as follows:

The court may order reasonable fees of experts and the child's guardian ad litem, and other costs of the action, including blood or genetic test costs, to be paid by the parties in proportions and at times determined by the court. The guardian ad litem fees shall be set in accordance to the fee schedule established pursuant to section 28 of this act. The court may order that all or a portion of a party's reasonable attorney's fees be paid by another party, except that an award of attorney's fees assessed against the state or any of its agencies or representatives shall be under RCW 4.84.185.

Sec. 21. RCW 26.33.070 and 1984 c 155 s 7 are each amended to read as follows:

(1) The court shall appoint a guardian ad litem for any parent or alleged father under eighteen years of age in any proceeding under this chapter. The court may appoint a guardian ad litem for a child adoptee or any incompetent party in any proceeding under this chapter. The guardian ad litem for a parent or alleged father, in addition to determining what is in the best interest of the party, shall make an investigation and report to the court concerning whether any written consent to adoption or petition for relinquishment signed by the parent or alleged father was signed voluntarily and with an understanding of the consequences of the action.

(2) The county in which a petition is filed shall pay the fees of a guardian ad litem or attorney appointed under this chapter. The guardian ad litem fees shall be set in accordance to the fee schedule established pursuant to section 28 of this act.

Sec. 22. RCW 26.44.053 and 1994 c 110 s 1 are each amended to read as follows:

(1) In any judicial proceeding under this chapter or chapter 13.34 RCW in which it is alleged that a child has been subjected to child abuse or neglect, the court shall appoint a guardian ad litem for the child. The requirement of a guardian ad litem may be deemed satisfied if the child is represented by counsel in the proceedings.

(2) Each guardian ad litem program shall maintain a background information record for each guardian ad litem in the program. The background file shall include, but is not limited to, the following information:

(a) Level of formal education;

(b) Training related to the guardian's duties;

(d) Number of appointments as a guardian ad litem;

(f) Number of affidavits of prejudice, if any, filed against the guardian ad litem, including the number per year and the county in which it was filed; and

(g) Criminal history, as defined in RCW 9.94A.030.

The background information report shall be updated annually. As a condition of appointment, the guardian ad litem's background information record shall be made available to the court, and immediately provided to the parties or their attorneys. If the appointed guardian ad litem is not a member of a guardian ad litem program the person shall immediately provide the required background information to the court, and to the parties or their attorneys. The background statement shall not include identifying information that may be used to harm a guardian ad litem, such as home addresses and home telephone numbers, and for volunteer guardians ad litem the court may allow the use of maiden names or pseudonyms as necessary for their safety.

(3) At any time prior to or during a hearing in such a case, the court may, on its own motion, or the motion of the guardian ad litem, or other parties, order the examination by a physician, psychologist, or psychiatrist, of any parent or child or other person having custody of the child at the time of the alleged child abuse or neglect, if the court finds such an examination is necessary to the proper determination of the case. The hearing may be continued pending the completion of such examination. The physician, psychologist, or psychiatrist conducting such an examination may be required to testify concerning the results of such examination and may be asked to give his or her opinion as to whether the protection of the child requires that he or she not be returned to the custody of his or her parents or other persons having custody of him or her at the time of the alleged child abuse or neglect. Persons so testifying shall be subject to cross-examination as are other witnesses. No information given at any such examination of the parent or any other person having custody of the child may be used against such person in any subsequent criminal proceedings against such person or custodian concerning the abuse or neglect of the child.

((~~(3)~~)) (4) A parent or other person having legal custody of a child alleged to be abused or neglected shall be a party to any proceeding that may impair or impede such person's interest in and custody or control of the child.

NEW SECTION. Sec. 23. A new section is added to chapter 13.34 RCW to read as follows:

(1) All guardians ad litem appointed under this title, after January 1, 1998, shall have completed the comprehensive state-wide curriculum developed by the office of the administrator for the courts, under RCW 2.56.030(16), prior to their appointment.

(2) The superior court of each county shall maintain a registry of persons who are willing and qualified to serve as guardians ad litem under this title. The court shall only appoint as guardian ad litem, the person whose name appears next on the registry. If the person whose name appears next on the registry is: Unable to accept the appointment, unwilling to accept the appointment, or subject to an affidavit of prejudice, the person's name shall be placed at the bottom of the registry. The rotational registry system shall not apply to court-appointed special advocate programs.

(3) The interim actions of a guardian ad litem are revisable by the court upon the motion of a party.

NEW SECTION. Sec. 24. A new section is added to chapter 26.12 RCW to read as follows:

(2) The superior court of each county shall maintain a registry of persons who are willing and qualified to serve as guardians ad litem under this title. The court shall only appoint as guardian ad litem the person whose name appears next on the registry. If the person whose name appears next on the registry is: Unable to accept the appointment, unwilling to accept the appointment, or subject to an affidavit of prejudice, the person's name shall be placed at the bottom of the registry. The rotational registry system shall not apply to court-appointed special advocate programs.

(3) The interim actions of a guardian ad litem are revisable by the court upon the motion of a party.

Sec. 25. RCW 65.12.145 and 1907 c 250 s 21 are each amended to read as follows:

The court shall appoint a disinterested person to act as guardian ad litem for minors and other incapacitated persons ((~~under disability~~)), as defined in chapter 11.88 RCW, and for all other persons not in being who may appear to have an interest in the land. The ((~~compensation of the said~~)) guardian's compensation shall be determined by the court, and paid as a part of the expense of the proceeding. The guardian ad litem fees shall be set in accordance to the fee schedule established pursuant to section 28 of this act.

Sec. 26. RCW 90.03.150 and 1977 ex.s. c 80 s 75 are each amended to read as follows:

Whenever any defendant in any proceeding instituted under this chapter is ((~~an infant~~)) a minor, or an alleged ((~~incompetent or disabled~~)) incapacitated person, as defined in chapter 11.88 RCW, for whom the court has not yet appointed either a guardian or a limited guardian, the court shall appoint a guardian ad litem for such ((~~minor or alleged incompetent or disabled~~)) defendant.

Sec. 27. RCW 91.08.230 and 1911 c 23 s 21 are each amended to read as follows:

((~~When it shall appear from said petition or otherwise, at any time during the proceedings upon such petition, that any infant, insane or distracted~~)) Whenever a minor or incapacitated person, as defined in chapter 11.88 RCW, is interested in any property that is to be taken or damaged under this chapter, the court shall appoint a guardian ad litem for such ((~~infant or insane or distracted~~)) person to appear and defend for ((~~him, her or them; and~~)) the person. The court shall make such order or decree as it shall deem proper to protect and secure the interest of ((~~such infant or insane or distracted~~)) the minor or incapacitated person ((~~in such property, or the compensation which shall be awarded therefor~~)).

NEW SECTION. Sec. 28. A new section is added to chapter 13.34 RCW to read as follows:

The maximum hourly fee allowed for the services a person acting as a guardian ad litem appointed under Titles 4, 8, 11, 13, 26, 43, 65, 70, 71, 74, 90, and 91 RCW as shall be fixed, after recommendation by the judges of the judicial district involved, by the legislative authority of the county comprising the judicial district, or by the legislative authorities acting jointly where the judicial district is comprised of more than one county. The legislative authority may set differing fee schedules for appointments under separate titles, or for the funding of court-appointed special advocate programs, and may establish a sliding fee scale for the indigent.

The judges of the superior court shall use the fee schedule as fixed by the county legislative authority when setting, awarding, or approving fees for guardians ad litem.

NEW SECTION. Sec. 29. A new section is added to chapter 11.88 RCW to read as follows:

A guardian ad litem, appointed under this title, may not select or designate the health care providers or evaluators for the incapacitated person, in opposition to the person's wishes, absent a court order.

NEW SECTION. Sec. 30. A new section is added to chapter 13.34 RCW to read as follows:

A guardian ad litem, appointed under this title, may not select or designate the health care providers or evaluators for the parents or minor, in opposition to their wishes, absent a court order.

NEW SECTION. Sec. 31. A new section is added to chapter 26.12 RCW to read as follows:

A guardian ad litem, appointed under this title, may not select or designate the health care providers or evaluators for the parents or minor, in opposition to their wishes, absent a court order.

NEW SECTION. Sec. 32. It is the intent of sections 33 through 40 of this act to encourage the courts to intrude into the lives and financial affairs of incapacitated persons through judicially supervised guardianships only when an alternative arrangement cannot meet their needs, and then only in the least intrusive and restrictive form possible to meet their needs; and to make improvements in the administration of guardianship proceedings.

Sec. 33. RCW 11.88.005 and 1990 c 122 s 1 are each amended to read as follows:

(1) It is the intent of the legislature to protect the liberty and autonomy of all people of this state, and to enable them to exercise their rights under the law to the maximum extent, consistent with the capacity of each person. The legislature recognizes that people with incapacities have unique abilities and needs, and that some people with incapacities cannot exercise their rights or provide for their basic needs without the help of a guardian or other fiduciary. However, their liberty and autonomy should be restricted through ((~~the guardianship process~~)) judicial intervention only to the minimum extent necessary to adequately provide for their own health or safety, or to adequately manage their financial affairs.

(2) It is the intent of the legislature that the courts should intervene, through the guardianship process, into the personal and financial affairs of persons who have become incapacitated only to the limited extent that alternative arrangements chosen by the person are inadequate to address their needs and cannot be made adequate through creative application by the court of its inherent equity powers. The legislature intends that the courts respect and implement those decisions the person made, before becoming fully incapacitated, concerning both the form of the arrangement chosen to address their needs and the family members or other persons chosen to act as fiduciaries under those arrangements.

Sec. 34. RCW 11.88.010 and 1991 c 289 s 1 are each amended to read as follows:

(1) The superior court of each county shall have power to appoint guardians for the persons and/or estates of incapacitated persons, and guardians for the estates of nonresidents of the state who have property in the county needing care and attention and to exercise their inherent equity powers to address the needs of incapacitated persons in a restrained manner consistent with the legislative intent expressed in RCW 11.88.005.

(a) For purposes of this chapter, a person may be deemed incapacitated as to person when the superior court determines the individual has a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety.

(b) For purposes of this chapter, a person may be deemed incapacitated as to the person's estate when the superior court determines the individual is at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs.

(c) A determination of incapacity is a legal not a medical decision, based upon a demonstration of management insufficiencies over time in the area of person or estate. Age, eccentricity, poverty, or medical diagnosis alone shall not be sufficient to justify a finding of incapacity.

(d) A person may also be determined incapacitated if he or she is under the age of majority as defined in RCW 26.28.010.

(e) For purposes of giving informed consent for health care pursuant to RCW 7.70.050 and 7.70.065, an "incompetent" person is any person who is (i) incompetent by reason of mental illness, developmental disability, senility, habitual drunkenness, excessive use of drugs, or other mental incapacity, of either managing his or her property or caring for himself or herself, or both, or (ii) incapacitated as defined in (a), (b), or (d) of this subsection.

(f) For purposes of the terms "incompetent," "disabled," or "not legally competent," as those terms are used in the Revised Code of Washington to apply to persons incapacitated under this chapter, those terms shall be interpreted to mean "incapacitated" persons for purposes of this chapter.

(2) The superior court for each county shall have power to appoint limited guardians for the persons and estates, or either thereof, of incapacitated persons, who by reason of their incapacity have need for protection and assistance, but who are capable of managing some of their personal and financial affairs. After considering all evidence presented as a result of such investigation, the court shall impose, by order, only such specific limitations and restrictions on an incapacitated person to be placed under a limited guardianship as the court finds necessary for such person's protection and assistance. A person shall not be presumed to be incapacitated nor shall a person lose any legal rights or suffer any legal disabilities as the result of being placed under a limited guardianship, except as to those rights and disabilities specifically set forth in the court order establishing such a limited guardianship. In addition, the court order shall state the period of time for which it shall be applicable.

(3) Venue for petitions ((~~for guardianship or limited guardianship~~)) under this chapter shall lie in the county wherein the alleged incapacitated person is domiciled, or if such person resides in a facility supported in whole or in part by local, state, or federal funding sources, in either the county where the facility is located, the county of domicile prior to residence in the supported facility, or the county where a parent or spouse of the alleged incapacitated person is domiciled.

If the alleged incapacitated person's residency has changed within one year of the filing of the petition, any interested person may move for a change of venue for any proceedings ((~~seeking the appointment of a guardian or a limited guardian~~)) under this chapter to the county of the alleged incapacitated person's last place of residence of one year or more. The motion shall be granted when it appears to the court that such venue would be in the best interests of the alleged incapacitated person and would promote more complete consideration of all relevant matters.

(4) ((Under RCW 11.94.010, a principal may nominate, by a durable power of attorney, the guardian or limited guardian of his or her estate or person for consideration by the court if guardianship proceedings for the principal's person or estate are thereafter commenced. The court shall make its appointment in accordance with the principal's most recent nomination in a durable power of attorney except for good cause or disqualification.)) If an alleged incapacitated person has executed a power of attorney showing an intent that his or her agent=s authority shall be exercisable notwithstanding the person's disability or incapacity and an intent that his or her agent have general power to manage the person=s property and financial affairs, then such agent shall have all the power of a full guardian of the estate of the person, and no guardian of the estate of that person shall be necessary.

(5) If an alleged incapacitated person has executed a power of attorney showing an intent that his or her agent's authority shall be exercisable notwithstanding the person's disability or incapacity and an intent that his or her agent have general power to provide informed consent for health care decisions on his or her behalf, then such agent shall have all the power of a full guardian of the person of the alleged incapacitated person, and no guardian of the person of that person shall be necessary.

(6) If an alleged incapacitated person has appointed one or more agents who exercise the powers of guardians pursuant to subsection (4) or (5) of this section, and if the court finds the existence of probable cause that the person is incapacitated, then the court, upon the petition of an agent, may enter an order declaring that any persons asserting the validity of acts thereafter taken by the alleged incapacitated person shall have the burden of proving the legal capacity of the actor at the time of the act. Nothing in subsection (4) or (5) of this section restricts the inherent equity power of the courts to protect the interests of an alleged incapacitated person if it is shown that the agent has breached the agent's fiduciary duties to the alleged incapacitated person.

(7) At any time in a proceeding on a petition under this chapter, but as early in the proceeding as possible, any person may by motion request that the court determine and declare that an alternative arrangement made by an alleged incapacitated person is valid and adequate to meet the incapacitated person's needs. Such motion shall automatically stay the proceeding on the petition and suspend any investigation into the person=s capacity by a court observer until the court rules upon the motion following a hearing with such notice to such potentially interested persons as the court directs by order. If the court does not dismiss the petition based upon the motion, the time limits under this chapter shall be extended by the period from the filing of the motion to the entry of the court's ruling on it.

(8) The degree of mental capacity necessary to validly execute a power of attorney, trust agreement, or other instrument intended as an alternative to a judicially supervised guardianship shall be that degree of mental capacity that is necessary to execute a valid will. No finding of incapacity or other order in a proceeding under this chapter shall prevent any person from executing a will or other dispositive instrument, but the validity of such an instrument, if challenged by an interested party, shall be determined based upon the mental capacity of the maker at the moment that he or she executed the instrument.

(9) When a court imposes a full guardianship for an incapacitated person, the person shall be considered incompetent for purposes of rationally exercising the right to vote and shall lose the right to vote, unless the court specifically finds that the person is rationally capable of exercising the franchise. Imposition of a limited guardianship for an incapacitated person shall not result in the loss of the right to vote unless the court determines that the person is incompetent for purposes of rationally exercising the franchise.

Sec. 35. RCW 11.88.020 and 1990 c 122 s 3 are each amended to read as follows:

Any suitable person over the age of eighteen years, or any parent under the age of eighteen years may, if not otherwise disqualified, be appointed guardian or limited guardian of the person and/or the estate of an incapacitated person; any trust company ((~~regularly organized under the laws of this state~~)) supervised by the department of financial institutions and national banks when authorized so to do may act as guardian or limited guardian of the estate of an incapacitated person; and any nonprofit corporation may act as guardian or limited guardian of the person and/or estate of an incapacitated person ((~~if the articles of incorporation or bylaws of such corporation permit such action and such corporation is in compliance with all applicable provisions of Title 24 RCW~~)). However, after January 1, 1998, no nonprofit corporation except a public benefit nonprofit corporation, as defined in RCW 24.03.005, may act as guardian or limited guardian of the estate and/or person of an incapacitated person or as a fiduciary under an alternative arrangement for such a person. No person is qualified to serve as a guardian who is

(1) under eighteen years of age except as otherwise provided herein;

(2) of unsound mind;

(3) convicted of a felony or of a misdemeanor involving moral turpitude;

(4) a nonresident of this state who has not appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate and caused such appointment to be filed with the court;

(5) a corporation not authorized to act as a fiduciary, guardian, or limited guardian in the state;

(6) a person whom the court finds unsuitable.

Sec. 36. RCW 11.88.030 and 1995 c 297 s 1 are each amended to read as follows:

(1) Any person or entity may petition ((~~for the appointment of a qualified person, trust company, national bank, or nonprofit corporation authorized in RCW 11.88.020 as now or hereafter amended as the guardian or limited guardian of an~~)) the superior court to appoint a guardian for or otherwise address the needs of an alleged incapacitated person. No liability for filing a petition ((~~for guardianship or limited guardianship~~)) under this chapter shall attach to a petitioner acting in good faith and upon reasonable basis. A petition for guardianship ((~~or limited guardianship~~)) shall state:

(a) The name, ((~~age,~~)) residence, and post office address of the alleged incapacitated person;

(b) ((~~The nature of the alleged incapacity in accordance with RCW 11.88.010~~)) That the alleged incapacitated person has demonstrated inability to adequately provide for his or her nutrition, health, housing, or physical safety, or inability to adequately manage his or her property or financial affairs, or both;

(c) ((~~The approximate value and description of property, including any compensation, pension, insurance, or allowance, to which the alleged incapacitated person may be entitled~~)) Whether the alleged incapacitated person has made any arrangements intended to address his or her needs in the event of incapacity, and a summary of any such arrangements;

(d) Whether there is, in any state, a guardian or limited guardian, or pending guardianship action for the person or estate of the alleged incapacitated person;

(e) The residence and post office address of the person or persons, if any, whom petitioner asks to be appointed if the court determines it necessary to appoint a guardian or limited guardian;

(f) The names and addresses, and nature of the relationship, so far as known or can be reasonably ascertained, of the persons most closely related by blood or marriage to the alleged incapacitated person;

(g) The name and address of the person or facility having the care and custody of the alleged incapacitated person((;

(h) The reason why the appointment of a guardian or limited guardian is sought and the interest of the petitioner in the appointment, and whether the appointment is sought as guardian or limited guardian of the person, the estate, or both, and why no alternative to guardianship is appropriate;

(i) The nature and degree of the alleged incapacity and the specific areas of protection and assistance requested and the limitation of rights requested to be included in the court's order of appointment;

~~(j) The requested term of the limited guardianship to be included in the court's order of appointment;~~

(k) Whether the petitioner is proposing a specific individual to act as guardian ad litem and, if so, the individual's knowledge of or relationship to any of the parties, and why the individual is proposed)).

(2)(a) The attorney general may petition for the appointment of a guardian or limited guardian in any case in which there is cause to believe that a guardianship is necessary and no private party is able and willing to petition.

(b) Prepayment of a filing fee shall not be required in any guardianship or limited guardianship brought by the attorney general. Payment of the filing fee shall be ordered from the estate of the incapacitated person at the hearing on the merits of the petition, unless in the judgment of the court, such payment would impose a hardship upon the incapacitated person, in which case the filing shall be waived.

(3) No filing fee shall be charged by the court for filing ((~~either~~)) a petition ((~~for guardianship or a petition for limited guardianship~~)) under this chapter if the petition alleges that the alleged incapacitated person has total assets of a value of less than three thousand dollars.

(4)(a) Notice that a guardianship proceeding has been commenced shall be personally served upon the alleged incapacitated person ((~~and~~)) by the ((~~guardian ad litem~~)) court observer or other disinterested person along with a copy of the petition for appointment of a guardian. Such notice shall be served not more than five court days after the petition has been filed.

(b) Notice under this subsection shall include a clear and easily readable statement ((of)) that the legal rights of the alleged incapacitated person that could be restricted or transferred to a guardian by a guardianship order as well as the due process rights to counsel of choice ((~~and to a jury trial~~)) to advocate the person's preferences in an evidentiary hearing or trial before a judge or jury on the issue of incapacity. Such notice shall be in substantially the following form and shall be in capital letters, double-spaced, and in a type size not smaller than ten-point type:

IMPORTANT NOTICE

PLEASE READ CAREFULLY

A PETITION TO HAVE A GUARDIAN APPOINTED FOR YOU HAS BEEN FILED IN THE . . . . . . COUNTY SUPERIOR COURT ((~~BY . . . . . . IF A GUARDIAN IS APPOINTED, YOU COULD LOSE ONE OR MORE OF THE FOLLOWING~~)). THE COURT CAN TAKE AWAY ALMOST ALL OF YOUR RIGHTS, INCLUDING YOUR RIGHTS:

(1) TO ((~~MARRY OR DIVORCE~~)) MAKE YOUR OWN MEDICAL, HEALTH, AND PERSONAL CARE DECISIONS;

(2) TO ((~~VOTE OR HOLD AN ELECTED OFFICE~~)) CONTROL AND SPEND YOUR OWN MONEY AND CONTROL YOUR OWN PROPERTY;

(3) TO ((~~ENTER INTO~~)) MAKE A VALID CONTRACT ((~~OR MAKE OR REVOKE A WILL~~)), DEED, OR OTHER LEGAL DOCUMENT;

(4) TO APPOINT SOMEONE TO ACT ON YOUR BEHALF;

(5) TO SUE AND BE SUED OTHER THAN THROUGH A GUARDIAN;

(6) TO ((~~POSSESS A LICENSE TO DRIVE~~)) VOTE OR HOLD AN ELECTIVE OFFICE;

(7) TO ((~~BUY, SELL, OWN, MORTGAGE, OR LEASE PROPERTY~~)) MARRY OR DIVORCE;

(8) TO CONSENT TO OR REFUSE MEDICAL TREATMENT;

(9) TO DECIDE WHO SHALL PROVIDE YOUR CARE AND ASSISTANCE;

(10) TO MAKE DECISIONS REGARDING SOCIAL ASPECTS OF YOUR LIFE.

UNDER THE LAW, YOU HAVE CERTAIN RIGHTS.

YOU HAVE THE RIGHT TO BE REPRESENTED BY A LAWYER OF YOUR OWN CHOOSING. THE COURT WILL APPOINT A LAWYER TO REPRESENT YOU IF YOU ARE UNABLE TO PAY OR PAYMENT WOULD RESULT IN A SUBSTANTIAL HARDSHIP TO YOU.

YOU HAVE THE DUE PROCESS RIGHT TO ((~~ASK FOR A JURY TO DECIDE WHETHER OR NOT YOU NEED A GUARDIAN TO HELP~~)) PRESENT TESTIMONY AND EVIDENCE TO A JUDGE OR, IF YOU REQUEST, TO A JURY BEFORE THE COURT TAKES AWAY YOUR RIGHTS OR APPOINTS A GUARDIAN FOR YOU.

YOU HAVE THE RIGHT TO BE PRESENT IN COURT WHEN THE HEARING IS HELD TO DECIDE WHETHER OR NOT ((~~YOU NEED~~)) TO TAKE AWAY ANY OF YOUR RIGHTS AND APPOINT A GUARDIAN FOR YOU.

(5) All petitions filed under the provisions of this section shall be heard within ((~~sixty~~)) seventy days unless an extension of time is requested by a party within such ((~~sixty~~)) seventy day period and granted for good cause shown. If an extension is granted, the court shall set a new hearing date.

Sec. 37. RCW 11.88.040 and 1995 c 297 s 2 are each amended to read as follows:

Before appointing a guardian or a limited guardian, notice of a hearing, to be held not less than ten days after service thereof, shall be served personally upon the alleged incapacitated person, if over fourteen years of age, or served upon his or her attorney, and served upon the ((~~guardian ad litem~~)) court observer.

Before appointing a guardian or a limited guardian, notice of a hearing, to be held not less than ten days after service thereof, shall be given by registered or certified mail to the last known address requesting a return receipt signed by the addressee or an agent appointed by the addressee, or by personal service in the manner provided for services of summons, to the following:

(1) The alleged incapacitated person, or minor, if under fourteen years of age;

(2) A parent, if the alleged incapacitated person is a minor, all known children not residing with a notified person, and the spouse of the alleged incapacitated person if any;

(3) Any other person who has been appointed as guardian or limited guardian, or the person with whom the alleged incapacitated person resides. No notice need be given to those persons named in subsections (2) and (3) of this section if they have signed the petition for the appointment of the guardian or limited guardian or have waived notice of the hearing.

(4) If the petition is by a parent asking for appointment as guardian or limited guardian of a minor child under the age of fourteen years, or if the petition is accompanied by the written consent of a minor of the age of fourteen years or upward, who consents to the appointment of the guardian or limited guardian asked for, or if the petition is by a nonresident guardian of any minor or incapacitated person, then the court may appoint the guardian without notice of the hearing. The court for good cause may reduce the number of days of notice, but in every case, at least three days notice shall be given.

The alleged incapacitated person shall be present in court at the final hearing on the petition: PROVIDED, That this requirement may be waived at the discretion of the court for good cause other than mere inconvenience shown in the report to be provided by the ((~~guardian ad litem~~)) court observer pursuant to RCW 11.88.090 ((~~as now or hereafter amended~~)), or if no ((~~guardian ad litem~~)) court observer is required to be appointed pursuant to RCW 11.88.090, ((~~as now or hereafter amended,~~)) at the discretion of the court for good cause shown by a party. Alternatively, the court may remove itself to the place of residence of the alleged incapacitated person and conduct the final hearing in the presence of the alleged incapacitated person. Final hearings on the petition may be held in closed court without admittance of any person other than those necessary to the action or proceeding.

((If presence of the alleged incapacitated person is waived and the court does not remove itself to the place of residence of such person, the guardian ad litem shall appear in person at the final hearing on the petition.))

Sec. 38. RCW 11.88.045 and 1995 c 297 s 3 are each amended to read as follows:

(1)(a) Alleged incapacitated individuals shall have the right to be represented by counsel at any stage in guardianship proceedings. The court shall provide counsel to represent any alleged incapacitated person at public expense when either: (i) The individual is unable to afford counsel, or (ii) the expense of counsel would result in substantial hardship to the individual, or (iii) the individual does not have practical access to funds with which to pay counsel. If the individual can afford counsel but lacks practical access to funds, the court shall provide counsel and may impose a reimbursement requirement as part of a final order. When, in the opinion of the court, the rights and interests of an alleged or adjudicated incapacitated person cannot otherwise be adequately protected and represented, the court on its own motion shall appoint an attorney at any time to represent such person. Counsel shall be provided as soon as practicable after a petition is filed and long enough before any final hearing to allow adequate time for consultation and preparation. Absent a convincing showing in the record to the contrary, a period of less than three weeks shall be presumed by a reviewing court to be inadequate time for consultation and preparation.

(b) Counsel for an alleged incapacitated individual shall act as an advocate for the client and shall not substitute counsel's own judgment for that of the client on the subject of what may be in the client's best interests. Counsel's role shall be distinct from that of the ((~~guardian ad litem~~)) court observer, who is expected to promote the best interest of the alleged incapacitated individual, rather than the alleged incapacitated individual's expressed preferences.

(c) If an alleged incapacitated person is represented by counsel and does not communicate with counsel, counsel may ask the court for leave to withdraw for that reason. If satisfied, after affording the alleged incapacitated person an opportunity for a hearing, that the request is justified, the court may grant the request and allow the case to proceed with the alleged incapacitated person unrepresented.

(2) ((~~During the pendency of any guardianship, any~~)) An attorney purporting to represent a person alleged or adjudicated to be incapacitated ((shall petition to be appointed to represent the incapacitated or alleged incapacitated person. Fees for representation described in this section shall be subject to approval by the court pursuant to the provisions of RCW 11.92.180)) is subject to appropriate sanctions by the court for unprofessional conduct. Reasonable fees for such representation may be approved and paid by any fiduciary, other than the attorney, who controls assets of the represented person. If requested by such a fiduciary, the attorney, or the client, the court may approve or disapprove the requested fees after considering, in a manner that best preserves the confidences and secrets of the client, the services for which payment is sought.

(3) The alleged incapacitated person is further entitled, unless the right is expressly waived, to give and present testimony and other evidence to the court, or, upon request, to a jury ((~~trial~~)), on the issues of his or her alleged incapacity. The standard of proof to be applied in a contested case, whether before a jury or the court, shall be that of clear, cogent, and convincing evidence.

(4) In all proceedings for appointment of a guardian or limited guardian, the court must be presented with a written report from a physician licensed to practice under chapter 18.71 or 18.57 RCW or licensed or certified psychologist selected by the ((~~guardian ad litem~~)) alleged incapacitated person or his or her counsel. If the court observer has not received confirmation within fourteen days of the petition filing date from such a professional that he or she will deliver to the court observer a report satisfying this section within forty-two days of the petition filing date, then the court observer may select such a professional. The physician or psychologist shall have personally examined and interviewed the alleged incapacitated person within thirty days of preparation of the report to the court and shall have expertise in the type of disorder or incapacity the alleged incapacitated person is believed to have. The report shall contain the following information and shall be set forth in substantially the following format:

(a) The name and address of the examining physician or psychologist;

(b) The education and experience of the physician or psychologist pertinent to the case;

(d) A summary of the relevant medical, functional, neurological, psychological, or psychiatric history of the alleged incapacitated person as known to the examining physician or psychologist;

(e) The findings of the examining physician or psychologist as to the condition of the alleged incapacitated person;

(f) Current medications;

(g) The effect of current medications on the alleged incapacitated person's ability to understand or participate in guardianship proceedings;

(h) Opinions on the specific assistance the alleged incapacitated person needs;

(i) Identification of persons with whom the physician or psychologist has met or spoken regarding the alleged incapacitated person.

The court shall not enter an order appointing a guardian or limited guardian until a medical or psychological report meeting the above requirements is filed.

The requirement of filing a medical report is waived if the basis of the guardianship is minority.

Sec. 39. RCW 11.88.090 and 1995 c 297 s 4 are each amended to read as follows:

(1) Nothing contained in RCW 11.88.080 through 11.88.120, 11.92.010 through 11.92.040, 11.92.060 through 11.92.120, 11.92.170, and 11.92.180((~~, as now or hereafter amended,~~)) shall affect or impair the power of any court to appoint a guardian ad litem to defend the interests of any incapacitated person interested in any suit or matter pending therein, or to commence and prosecute any suit in his or her behalf.

(2) Upon receipt of a petition ((~~for appointment of guardian or limited guardian~~)) under this chapter, except as provided herein, the court shall appoint a ((~~guardian ad litem~~)) court observer to ((~~represent~~)) investigate and report to the court concerning the best interests of the alleged incapacitated person, who shall be a person found or known by the court to:

(a) Be free of influence from anyone interested in the result of the proceeding; and

(b) Have the requisite knowledge, training, or expertise to perform the duties required by this section. The court observer shall be recognized as a referee under RCW 2.24.060(2) and may address the court in chambers to request orders to aid in the investigation required by this section, but only prior to the filing of the required report.

No ((~~guardian ad litem~~)) court observer need be appointed when a parent is petitioning for a guardian or a limited guardian to be appointed for his or her minor child and the minority of the child, as defined by RCW 11.92.010, is the sole basis of the petition. The order appointing the ((~~guardian ad litem~~)) court observer shall recite the duties set forth in subsection (5) of this section. The appointment of a ((~~guardian ad litem~~)) court observer shall have no effect on the legal competency of the alleged incapacitated person and shall not overcome the presumption of competency or full legal and civil rights of the alleged incapacitated person. Health care directives executed under chapter 70.122 RCW and all powers of attorney executed by an alleged incapacitated person prior to the appointment of a guardian ad litem shall remain in effect until the court specifically orders otherwise.

(3)(a) The superior court of each county shall ((~~develop by September 1, 1991,~~)) maintain a registry of persons who are willing and are determined by a judge of such court to be qualified to serve as ((~~guardians ad litem~~)) court observers in guardianship matters. The court shall ((~~choose~~)) only appoint as ((~~guardians ad litem only~~)) court observer the person((s)) whose name((s)) appears next on the registry, ((~~except in extraordinary circumstances~~)) using a sequential or other method that precludes individual selection. If the person whose name appears next on the registry is: Unable to accept the appointment, unwilling to accept the appointment, or subject to an affidavit of prejudice, the person's name shall be placed at the bottom of the registry.

(b) To be eligible for the registry a person shall be licensed, have formal training, or have substantial experience in a medical or social services field or as a lawyer or paralegal and shall:

(i) Present a written statement ((of)) outlining his or her background and qualifications ((~~describing~~)). The background statement shall include, but is not limited to, the following information:

(A) Level of formal education;

(B) Training related to the guardian's duties;

(D) Number of appointments as a court observer and the county or counties of appointment;

(E) Number of complaints against the court observer, filed with the guardian ad litem program, the Washington state bar association, or the superior court, including the nature of the complaint and its resolution;

(F) Number of affidavits of prejudice, if any, filed against the court observer, including the number per year and the county in which it was filed;

(G) Criminal history, as defined in RCW 9.94A.030; and

(H) Evidence of the person's knowledge, training, and experience in each of the following: Needs of impaired elderly people, physical disabilities, mental illness, developmental disabilities, and other areas relevant to the needs of incapacitated persons, legal procedure, and the requirements of chapters 11.88 and 11.92 RCW. The background statement shall not include identifying information that may be used to harm a court observer, such as home addresses and home telephone numbers, and for volunteer court observers the court may allow the use of maiden names or pseudonyms as necessary for their safety; and

(ii) Complete a training program ((~~adopted by the court, or, in the absence of a locally adopted program, a candidate for inclusion upon the registry shall have completed a model training program~~)) as described in ((~~(d)~~)) (c) of this subsection within the previous three years.

~~(i) Train otherwise qualified human service professionals in those aspects of legal procedure and the requirements of chapters 11.88 and 11.92 RCW with which a guardian ad litem should be familiar;~~

~~(ii) Train otherwise qualified legal professionals in those aspects of medicine, social welfare, and social service delivery systems with which a guardian ad litem should be familiar.~~)) The background information report shall be updated annually. As a condition of appointment, the court observer's background information record shall be made available to the court, and immediately provided to the parties or their attorneys. If the appointed court observer is not a member of a guardian ad litem program the person shall immediately provide the required background information to the court, and to the parties or their attorneys. The guardian ad litem program shall immediately file the notice of appointment and background statement with the court and send copies to the parties.

(d) ((~~The superior court of each county may approve a guardian ad litem training program on or before June 1, 1991.~~)) The department of social and health services((~~, aging and adult services administration,~~)) shall convene an advisory group to develop a model ((~~guardian ad litem~~)) court observer training program and shall update the program annually. The advisory group shall consist of representatives from consumer, advocacy, and professional groups knowledgeable in developmental disabilities, neurological impairment, physical disabilities, mental illness, aging, legal, court administration, the Washington state bar association, and other interested parties.

(((e) Any superior court that has not adopted a guardian ad litem training program by September 1, 1991, shall require utilization of a model program developed by the advisory group as described in (d) of this subsection, to assure that candidates applying for registration as a qualified guardian ad litem shall have satisfactorily completed training to attain these essential minimum qualifications to act as guardian ad litem.))

(4) The ((~~guardian ad litem's~~)) court observer's written statement of background and qualifications required by ((~~RCW 11.88.090~~)) subsection (3)(b)(i) of this section shall be made part of the record in each matter in which the person is appointed ((~~guardian ad litem~~)) court observer. As a condition of appointment, the court observer's background information shall be immediately provided to the parties or their attorneys.

(5) The ((~~guardian ad litem~~)) court observer appointed pursuant to this section shall have the following duties:

(a) To meet and consult with the alleged incapacitated person as soon as practicable following appointment and explain, in language which such person can reasonably be expected to understand, the substance of the petition, the nature of the resultant proceedings, the person's right to contest the petition, the identification of the proposed guardian or limited guardian, the right to an evidentiary hearing or a bench or jury trial on the issue of his or her alleged incapacity, the right to independent legal counsel as provided by RCW 11.88.045, and the right to be present in court at the hearing on the petition;

(b) To obtain a written report according to RCW 11.88.045; and such other written or oral reports from other qualified professionals as are necessary to permit the ((~~guardian ad litem~~)) court observer to complete the report required by this section;

(i) The proposed guardian's knowledge of the duties, requirements, and limitations of a guardian; and

(ii) The steps the proposed guardian intends to take or has taken to identify and meet the needs of the alleged incapacitated person;

(d) To consult as necessary to complete the investigation and report required by this section with those known relatives, friends, or other persons the ((~~guardian ad litem~~)) court observer determines have had a significant, continuing interest in the welfare of the alleged incapacitated person;

(e) To provide the court with a written report which shall include the following:

(i) A description of the nature, cause, and degree of incapacity, and the basis upon which this judgment was made;

(ii) A description of the needs of the incapacitated person for care and treatment, the probable residential requirements of the alleged incapacitated person and the basis upon which these findings were made;

(iii) An evaluation of the appropriateness of the guardian or limited guardian whose appointment is sought and a description of the steps the proposed guardian has taken or intends to take to identify and meet current and emerging needs of the incapacitated person;

(iv) A description of the abilities of the alleged incapacitated person and a recommendation as to whether a guardian or limited guardian should be appointed. If appointment of a limited guardian is recommended, the ((~~guardian ad litem~~)) court observer shall recommend the specific areas of authority the limited guardian should have and the limitations and disabilities to be placed on the incapacitated person;

(v) An evaluation of the person's mental ability to rationally exercise the right to vote and the basis upon which the evaluation is made;

(vi) Any expression of approval or disapproval made by the alleged incapacitated person concerning the proposed guardian or limited guardian or guardianship or limited guardianship;

(vii) Identification of persons with significant interest in the welfare of the alleged incapacitated person who should be advised of their right to request special notice of proceedings pursuant to RCW 11.92.150; ((~~and~~))

(viii) Unless independent counsel has appeared for the alleged incapacitated person, an explanation of how the alleged incapacitated person responded to the advice of the right to jury trial, to independent counsel and to be present at the hearing on the petition; and

(ix) A description of any alternatives to a guardianship that the court might consider to address the needs of the alleged incapacitated person.

Within forty-five days after notice of commencement of the guardianship proceeding has been served upon the ((~~guardian ad litem~~)) court observer, and at least ((~~ten~~)) twenty-one days before the hearing on the petition, unless an extension or reduction of time has been granted by the court for good cause, the ((~~guardian ad litem~~)) court observer shall file its report and send a copy to the alleged incapacitated person and his or her counsel, spouse, all children not residing with a notified person, those persons described in (e)(vii) of this subsection, and persons who have filed a request for special notice pursuant to RCW 11.92.150;

(f) To advise the court of the need for appointment of counsel for the alleged incapacitated person within five court days after the meeting described in (a) of this subsection unless (i) counsel has appeared, (ii) the alleged incapacitated person affirmatively communicated a wish not to be represented by counsel after being advised of the right to representation and of the conditions under which court-provided counsel may be available, or (iii) the alleged incapacitated person was unable to communicate at all on the subject, and the ((~~guardian ad litem~~)) court observer is satisfied that the alleged incapacitated person does not affirmatively desire to be represented by counsel;

(g) Provide periodic reports to the court and the parties regarding the status of the court observer's investigation and his or her periodic findings and recommendations. The report shall be provided at least every three months; and

(h) Provide to the parties monthly itemized accountings of the court observer's time and billings for services.

(6) If the petition is brought by an interested person or entity requesting the appointment of some other qualified person or entity and a prospective guardian or limited guardian cannot be found, the court ((~~shall order the guardian ad litem to~~)) observer shall investigate the availability of a possible guardian or limited guardian and to include the findings in a report to the court pursuant to RCW 11.88.090(5)(e) ((~~as now or hereafter amended~~)).

(7) The court ((appointed guardian ad litem shall have the authority, in the event that the alleged incapacitated person is in need of emergency life-saving medical services, and is unable to consent to such medical services due to incapacity pending the hearing on the petition to give consent for such emergency life-saving medical services on behalf of the alleged incapacitated person)) may, at any time after his or her appointment, request in writing an emergency appointment of a temporary full or limited guardian of the alleged incapacitated person's estate or person, and the court may exercise its inherent equity powers to appoint and empower a temporary guardian upon such notice, hearing, and proof as it considers appropriate under the circumstances.

(8) The ((~~guardian ad litem~~)) court observer shall receive a fee determined by the court commensurate with the qualifications required of a court observer. In entering the order the court shall utilize the fee schedule established pursuant to section 28 of this act. The fee shall be charged to the alleged incapacitated person unless the court finds that such payment would result in substantial hardship upon such person, in which case the county shall be responsible for such costs: PROVIDED, That ((~~if no guardian or limited guardian is appointed~~)) the court may charge all or a portion of such fee to the petitioner ((~~or the alleged incapacitated person, or divide the fee,~~)) as it deems just((~~; and if the petition is found to be frivolous or not brought in good faith, the guardian ad litem fee shall be charged to the petitioner~~)). The court shall not be required to provide for the payment of a fee to any salaried employee of a public agency.

(9) The court observer shall appear in person at the final hearing on the petition unless his or her presence is waived by all parties to the proceeding. Upon the ((~~presentation of the guardian ad litem report and the~~)) entry of an order either dismissing the petition for appointment of guardian or limited guardian or appointing a guardian or limited guardian, the ((~~guardian ad litem~~)) court observer shall be dismissed and shall have no further duties or obligations unless otherwise ordered by the court. If the court orders the ((~~guardian ad litem~~)) court observer to perform further duties or obligations, they shall not be performed at county expense.

(10) The interim actions of a court observer are revisable by the court upon the motion of a party.

Sec. 40. RCW 11.88.095 and 1995 c 297 s 5 are each amended to read as follows:

(1) In determining the disposition of a petition for guardianship, the court's order shall be based upon findings as to the capacities, condition, and needs of the alleged incapacitated person, and shall not be based solely upon agreements made by the parties.

(2) Every order appointing a full or limited guardian of the person or estate shall include:

(a) Findings as to the capacities, condition, and needs of the alleged incapacitated person;

(b) The amount of the bond, if any, or a bond review period;

(d) Whether the ((~~guardian ad litem~~)) court observer shall continue acting as ((~~guardian ad litem~~)) court observer and if so, with what duties;

(e) Whether a review hearing shall be required upon the filing of the inventory;

(f) The authority of the guardian, if any, for investment and expenditure of the ward's estate; and

(g) Names and addresses of those persons described in RCW 11.88.090(5)(d), if any, whom the court believes should receive copies of further pleadings filed by the guardian with respect to the guardianship.

(3) If the court determines that a limited guardian should be appointed, the order shall specifically set forth the limits by either stating exceptions to the otherwise full authority of the guardian or by stating the specific authority of the guardian.

(4) In determining the disposition of a petition for appointment of a guardian or limited guardian of the estate only, the court shall consider whether the alleged incapacitated person is capable of giving informed medical consent or of making other personal decisions and, if not, whether a guardian or limited guardian of the person of the alleged incapacitated person should be appointed for that purpose.

(5) Unless otherwise ordered, any powers of attorney or durable powers of attorney shall be revoked upon appointment of a guardian or limited guardian of the estate.

If there is an existing medical power of attorney, the court must make a specific finding of fact regarding the continued validity of that medical power of attorney before appointing a guardian or limited guardian for the person.

(6) In disposing by final order of any petition filed under this chapter, the court shall charge against the estate of the alleged incapacitated person the costs and necessary expenses incurred by the petitioner to properly commence the proceeding, but not the attorneys' fees of the petitioner or other third parties incurred to advocate their positions in the proceeding, unless the court determines it unjust to allocate such costs or fees in that manner.