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, 11.88.030, 11.88.045, 11.88.090,
11.92.190, 13.34.100, 13.34.120, 26.12.175, and 26.44.053; adding a new section
to chapter 2.56 RCW; adding a new section to chapter 2.08 RCW; adding a new
section to chapter 13.34 RCW; adding a new section 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 the entities set forth in section 3(3) of this act, a
comprehensive state-wide curriculum for persons who act as guardians ad litem
under Title 13 or 26 RCW. The curriculum shall be made available July 1, 1997,
and include specialty sections on child development, child sexual abuse, child
physical abuse, child neglect, clinical and forensic investigative and
interviewing techniques, family reconciliation and mediation services, 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 review the advisability and feasibility of the state-wide
mandatory use of court-appointed special advocates as described in RCW
26.12.175 to act as guardians ad litem in appropriate cases under Titles 13 and
26 RCW. The review must explore the feasibility of obtaining various sources
of private and public funding to implement state-wide mandatory use of
court-appointed special advocates, such as grants and donations, instead of or
in combination with raising court fees or assessments.
(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 conducting the
review and 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 or compensated 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.
(4) The office of the
administrator for the courts shall also conduct a review of problems and
concerns about the role of guardians ad litem in actions under Titles 11, 13,
and 26 RCW and recommend alternatives to strengthen judicial oversight of
guardians ad litem and ensure fairness and impartiality of the process. The
office of the administrator for the courts must accept and obtain comments from
parties designated in subsection (3) of this section.
NEW SECTION. Sec.
4. The review and study
required under section 3 of this act shall be presented to the governor and to
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 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 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 11.88.030 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
incapacitated person. No liability for filing a petition for guardianship or
limited guardianship 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;
(c) The approximate
value and description of property, including any compensation, pension,
insurance, or allowance, to which the alleged incapacitated person may be
entitled;
(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 whom petitioner asks to be appointed 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) A description of
any alternate arrangements previously made by the alleged incapacitated person,
such as trusts or powers of attorney, including identifying any guardianship
nominations contained in a power of attorney, and why a guardianship is
nevertheless necessary;
(j) 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))) (k)
The requested term of the limited guardianship to be included in the court's
order of appointment;
(((k))) (l)
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 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 the guardian ad litem 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 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 right to
counsel of choice and to a jury trial 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 RIGHTS:
(1) TO
MARRY OR DIVORCE;
(2) TO
VOTE OR HOLD AN ELECTED OFFICE;
(3) TO
ENTER INTO A CONTRACT OR MAKE OR REVOKE A WILL;
(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;
(7) TO
BUY, SELL, OWN, MORTGAGE, OR LEASE PROPERTY;
(8) TO
CONSENT TO OR REFUSE MEDICAL TREATMENT;
(9) TO
DECIDE WHO SHALL PROVIDE 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
RIGHT TO ASK FOR A JURY TO DECIDE WHETHER OR NOT YOU NEED A GUARDIAN TO HELP
YOU.
YOU HAVE THE
RIGHT TO BE PRESENT IN COURT AND TESTIFY WHEN THE HEARING IS HELD TO
DECIDE WHETHER OR NOT YOU NEED A GUARDIAN. IF A GUARDIAN AD LITEM IS
APPOINTED, YOU HAVE THE RIGHT TO REQUEST THE COURT TO REPLACE THAT PERSON.
(5) All
petitions filed under the provisions of this section shall be heard within
sixty days unless an extension of time is requested by a party or the
guardian ad litem within such sixty day period and granted for good cause
shown. If an extension is granted, the court shall set a new hearing date.
Sec. 9. 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 willing
counsel of their choosing 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, 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 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.
(3) The alleged
incapacitated person is further entitled to testify and present evidence
and, upon request, entitled 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. If the alleged incapacitated person opposes the health care
professional selected by the guardian ad litem to prepare the medical report,
then the guardian ad litem shall use the health care professional selected by
the alleged incapacitated person. The guardian ad litem may also obtain a
supplemental examination. 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;
(c) The dates of
examinations of the alleged incapacitated person;
(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.
(5) During the
pendency of an action to establish a guardianship, a petitioner or any person
may move for temporary relief under chapter 7.40 RCW, to protect the alleged
incapacitated person from abuse, neglect, abandonment, or exploitation, as
those terms are defined in RCW 74.34.020, or to address any other emergency
needs of the alleged incapacitated person. Any alternative arrangement
executed before filing the petition for guardianship shall remain effective
unless the court grants the relief requested under chapter 7.40 RCW, or unless,
following notice and a hearing at which all parties directly affected by the
arrangement are present, the court finds that the alternative arrangement
should not remain effective.
Sec. 10. 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, except as provided
herein, the court shall appoint a guardian ad litem to represent 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 guardian ad
litem shall within five days of receipt of notice of appointment file with the
court and serve, either personally or by certified mail with return receipt,
each party with a statement including: His or her training relating to the
duties as a guardian ad litem; his or her criminal history as defined in RCW
9.94A.030 for the period covering ten years prior to the appointment; his or
her hourly rate, if compensated; whether the guardian ad litem has had any
contact with a party to the proceeding prior to his or her appointment; and
whether he or she has an apparent conflict of interest. Within three days of
the later of the actual service or filing of the guardian ad litem's statement,
any party may set a hearing and file and serve a motion for an order to show
cause why the guardian ad litem should not be removed for one of the following
three reasons: (i) Lack of expertise necessary for the proceeding; (ii) an
hourly rate higher than what is reasonable for the particular proceeding; or
(iii) a conflict of interest. Notice of the hearing shall be provided to the
guardian ad litem and all parties. If, after a hearing, the court enters an order
replacing the guardian ad litem, findings shall be included, expressly stating
the reasons for the removal. If the guardian ad litem is not removed, the
court has the authority to assess to the moving party, attorneys' fees and
costs related to the motion. The court shall assess attorneys' fees and costs
for frivolous motions.
No guardian ad litem
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 shall recite the duties set forth in
subsection (((5))) (4) of this section. The appointment of a
guardian ad litem 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.
(3)(a) The superior
court of each county shall develop ((by September 1, 1991,)) and
maintain a registry of persons who are willing and qualified to serve as
guardians ad litem in guardianship matters. The court shall choose as
guardian((s)) ad litem ((only)) a person((s)) whose
name((s)) appears on the registry in a system of consistent
rotation, except in extraordinary circumstances such as the need for
particular expertise. The court shall develop procedures for periodic review
of the persons on the registry and for probation, suspension, or removal of
persons on the registry for failure to perform properly their duties as
guardian ad litem. In the event the court does not select the person next on
the list, it shall include in the order of appointment a written reason for its
decision.
(b) To be eligible for
the registry a person 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 ad litem's duties;
(C) Number of years'
experience as a guardian ad litem;
(D) Number of
appointments as a guardian ad litem and the county or counties of appointment;
(E) Criminal
history, as defined in RCW 9.94A.030; and
(F) 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 written
statement of qualifications shall include a statement of the number of times
the guardian ad litem has been removed for failure to perform his or her duties
as guardian ad litem; 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))
the model training program as described in (d) of this subsection.
(c) ((The superior
court of each county shall approve training programs designed to:
(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
and qualification information shall be updated annually.
(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 training program and shall update the
program biennially. 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)) The
superior court ((that has not adopted a guardian ad litem training program
by September 1, 1991,)) shall require utilization of ((a)) the
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 written statement of qualifications required by RCW
11.88.090(3)(b)(i) shall be made part of the record in each matter in which the
person is appointed guardian ad litem.
(5))) The guardian ad litem 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 a
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
to complete the report required by this section;
(c) To meet with the
person whose appointment is sought as guardian or limited guardian and
ascertain:
(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
determines have had a significant, continuing interest in the welfare of the
alleged incapacitated person;
(e) To investigate
alternate arrangements made, or which might be created, by or on behalf of the
alleged incapacitated person, such as revocable or irrevocable trusts, or
durable powers of attorney; whether good cause exists for any such arrangements
to be discontinued; and why such arrangements should not be continued or
created in lieu of a guardianship;
(f) 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 any alternative arrangements previously made by the alleged incapacitated
person or which could be made, and whether and to what extent such alternatives
should be used in lieu of a guardianship, and if the guardian ad litem is
recommending discontinuation of any such arrangements, specific findings as to
why such arrangements are contrary to the best interest of the alleged
incapacitated person;
(v) 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 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))) (vi)
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))) (vii)
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))) (viii)
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))) (ix)
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.
Within forty-five days
after notice of commencement of the guardianship proceeding has been served
upon the guardian ad litem, and at least ((ten)) fifteen 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 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))) (f)(viii) of this subsection, and
persons who have filed a request for special notice pursuant to RCW 11.92.150.
If the guardian ad litem needs additional time to finalize his or her report,
then the guardian ad litem shall petition the court for a postponement of the
hearing or, with the consent of all other parties, an extension or reduction of
time for filing the report. If the hearing does not occur within sixty days of
filing the petition, then upon the two-month anniversary of filing the petition
and on or before the same day of each following month until the hearing, the
guardian ad litem shall file interim reports summarizing his or her activities
on the proceeding during that time period as well as fees and costs incurred;
(((f))) (g)
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 is satisfied that the alleged incapacitated person
does not affirmatively desire to be represented by counsel.
(((6))) (5)
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 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)) subsection (4)(f) of this
section.
(6) The parties to
the proceeding may file responses to the guardian ad litem report with the
court and deliver such responses to the other parties and the guardian ad litem
at any time up to the second day prior to the hearing. If a guardian ad litem
fails to file his or her report in a timely manner, the hearing shall be
continued to give the court and the parties at least fifteen days before the
hearing to review the report. At any time during the proceeding upon motion of
any party or on the court's own motion, the court may remove the guardian ad
litem for failure to perform his or her duties as specified in this chapter,
provided that the guardian ad litem shall have five days notice of any motion
to remove before the court enters such order. In addition, the court in its
discretion may reduce a guardian ad litem's fee for failure to carry out his or
her duties.
(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.
(8) The court
appointed guardian ad litem shall have the authority, to move for temporary
relief under chapter 7.40 RCW to protect the alleged incapacitated person from
abuse, neglect, abandonment, or exploitation, as those terms are defined in RCW
74.34.020, or to address any other emergency needs of the alleged incapacitated
person. Any alternative arrangement executed before filing the petition for
guardianship shall remain effective unless the court grants the relief
requested under chapter 7.40 RCW, or unless, following notice and a hearing at
which all parties directly affected by the arrangement are present, the court
finds that the alternative arrangement should not remain effective.
(9) The guardian
ad litem shall receive a fee determined by the court. 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 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))) (10)
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 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 to perform
further duties or obligations, they shall not be performed at county expense.
(11) The guardian ad
litem shall appear in person at all hearings on the petition unless all parties
provide a written waiver of the requirement to appear.
(12) At any hearing
the court may consider whether any person who makes decisions regarding the
alleged incapacitated person or estate has breached a statutory or fiduciary
duty.
Sec. 11. 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 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 as provided in 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.
NEW SECTION. Sec.
12. A new section is added
to chapter 2.08 RCW to read as follows:
An attorney may not
serve as a superior court judge pro tempore or a superior court commissioner
pro tempore in a judicial district while appointed to or serving on a case in
that judicial district as a guardian ad litem for compensation under Title 11, 13,
or 26 RCW, if that judicial district is contained within division one or two of
the court of appeals and has a population of more than one hundred thousand.
Sec. 13. 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;
(c) Number of years'
experience as a guardian ad litem;
(d) Number of
appointments as a guardian ad litem and the county or counties of
appointment; and
(e) 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. If the appointed guardian ad litem is not a member of a guardian
ad litem program the person shall provide the background information to the
court.
Upon appointment,
the guardian ad litem, or guardian ad litem program, shall provide the parties
or their attorneys with a statement containing his or her training relating to
the duties as a guardian ad litem and criminal history as defined in RCW
9.94A.030 for the period covering ten years prior to the appointment. 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.
(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.
(8) When a
court-appointed special advocate or volunteer guardian ad litem is requested on
a case, the program shall give the court the name of the person it recommends
and the appointment shall be effective immediately. The court shall appoint
the person recommended by the program. If a party in a case reasonably
believes the court-appointed special advocate or volunteer is inappropriate or
unqualified, the party may request a review of the appointment by the program.
The program must complete the review within five judicial days and remove any
appointee for good cause. If the party seeking the review is not satisfied
with the outcome of the review, the party may file a motion with the court for
the removal of the court-appointed special advocate on the grounds the advocate
or volunteer is inappropriate or unqualified.
Sec. 14. 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. 15. 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 court may require the guardian ad litem to
provide periodic reports to the parties regarding the status of his or her
investigation. The guardian ad litem shall file his or her report at least
sixty days prior to trial.
(c) The court
shall enter an order for costs, fees, and disbursements to cover the costs of
the guardian ad litem. 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 an itemized accounting of their time and billing for services each
month.
(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.
(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;
(c) Number of years'
experience as a guardian ad litem;
(d) Number of
appointments as a guardian ad litem and county or counties of appointment;
and
(e) 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. If the appointed guardian ad litem is not a member of a guardian
ad litem program the person shall provide the background information to the
court.
Upon appointment,
the guardian ad litem, or guardian ad litem program, shall provide the parties
or their attorneys with a statement containing his or her training relating to
the duties as a guardian ad litem and criminal history as defined in RCW
9.94A.030 for the period covering ten years prior to the appointment. 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.
(4) When a
court-appointed special advocate or volunteer guardian ad litem is requested on
a case, the program shall give the court the name of the person it recommends
and the appointment shall be effective immediately. The court shall appoint
the person recommended by the program. If a party in a case reasonably
believes the court-appointed special advocate or volunteer is inappropriate or
unqualified, the party may request a review of the appointment by the program.
The program must complete the review within five judicial days and remove any
appointee for good cause. If the party seeking the review is not satisfied
with the outcome of the review, the party may file a motion with the court for
the removal of the court-appointed special advocate on the grounds the advocate
or volunteer is inappropriate or unqualified.
Sec. 16. 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 as provided in chapter 13.34 RCW. The
requirement of a guardian ad litem may be deemed satisfied if the child is
represented by counsel in the proceedings.
(2) 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) 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.
17. A new section is added
to chapter 13.34 RCW to read as follows:
(1) All guardians ad
litem, who have not previously served or been trained as a guardian ad litem in
this state, who are appointed after January 1, 1998, must complete the
curriculum developed by the office of the administrator for the courts under
RCW 2.56.030(16), prior to their appointment in cases under Title 13 RCW except
that volunteer guardians ad litem or court appointed special advocates accepted
into a volunteer program after January 1, 1998, may complete an alternative
curriculum approved by the office of the administrator for the courts that
meets or exceeds the state-wide curriculum.
(2)(a) Each guardian ad
litem program for compensated guardians ad litem shall establish a rotational
registry system for the appointment of guardians ad litem. If a judicial
district does not have a program the court shall establish the rotational
registry system. Guardians ad litem shall be selected from the registry except
in exceptional circumstances as determined and documented by the court. The
parties may make a joint recommendation for the appointment of a guardian ad
litem from the registry.
(b) In judicial
districts with a population over one hundred thousand, a list of three names
shall be selected from the registry and given to the parties along with the
background information as specified in RCW 13.34.100(3), including their hourly
rate for services. Each party may, within three judicial days, strike one name
from the list. If more than one name remains on the list, the court shall make
the appointment from the names on the list. In the event all three names are
stricken the person whose name appears next on the registry shall be appointed.
(c) If a party
reasonably believes that the appointed guardian ad litem lacks the necessary
expertise for the proceeding, charges an hourly rate higher than what is
reasonable for the particular proceeding, or has a conflict of interest, the
party may, within three judicial days from the appointment, move for
substitution of the appointed guardian ad litem by filing a motion with the
court.
(3) The rotational
registry system shall not apply to court-appointed special advocate programs.
NEW SECTION. Sec.
18. A new section is added
to chapter 26.12 RCW to read as follows:
(1) All guardians ad
litem, who have not previously served or been trained as a guardian ad litem in
this state, who are appointed after January 1, 1998, must complete the
curriculum developed by the office of the administrator for the courts under
RCW 2.56.030(16), prior to their appointment in cases under Title 26 RCW except
that volunteer guardians ad litem or court appointed special advocates accepted
into a volunteer program after January 1, 1998, may complete an alternative
curriculum approved by the office of the administrator for the courts that
meets or exceeds the state-wide curriculum.
(2)(a) Each guardian ad
litem program for compensated guardians ad litem shall establish a rotational
registry system for the appointment of guardians ad litem. If a judicial
district does not have a program the court shall establish the rotational
registry system. Guardians ad litem shall be selected from the registry except
in exceptional circumstances as determined and documented by the court. The
parties may make a joint recommendation for the appointment of a guardian ad
litem from the registry.
(b) In judicial
districts with a population over one hundred thousand, a list of three names
shall be selected from the registry and given to the parties along with the
background information as specified in RCW 26.12.175(3), including their hourly
rate for services. Each party may, within three judicial days, strike one name
from the list. If more than one name remains on the list, the court shall make
the appointment from the names on the list. In the event all three names are
stricken the person whose name appears next on the registry shall be appointed.
(c) If a party
reasonably believes that the appointed guardian ad litem lacks the necessary
expertise for the proceeding, charges an hourly rate higher than what is
reasonable for the particular proceeding, or has a conflict of interest, the
party may, within three judicial days from the appointment, move for
substitution of the appointed guardian ad litem by filing a motion with the
court.
(3) The rotational
registry system shall not apply to court-appointed special advocate programs.
