BILL REQ. #:  H-0695.2 

Read first time 02/06/2003.   Referred to Committee on Judiciary.

     AN ACT Relating to the role of guardians for persons with developmental disabilities; amending RCW 11.88.030, 11.88.095, 11.92.043, 11.92.190, 71A.10.060, and 71A.10.070; and amending 1998 c 216 s 9 (uncodified).

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

Sec. 1   RCW 11.88.030 and 1996 c 249 s 8 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 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;
     (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;
     (k) The requested term of the limited guardianship to be included in the court's order of appointment;
     (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) In any petition for guardianship of the person in which the petitioner alleges the guardian should be granted the alleged incapacitated person's decision-making authority regarding residential placement, the reasons for such a request must be specifically stated in the petition pursuant to subsection (1)(h) and (j) of this section.
     (5)(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:

Sec. 2   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;
     (c) When the next report of the guardian is due;
     (d) Whether the guardian ad litem shall continue acting as guardian ad litem;
     (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) The authority of the guardian, if any, for exercising the ward's preferences or decision making with regard to residence or residential placement; and
     (h) 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.

Sec. 3   RCW 11.92.043 and 1991 c 289 s 11 are each amended to read as follows:
     It shall be the duty of the guardian or limited guardian of the person:
     (1) To file within three months after appointment a personal care plan for the incapacitated person which shall include (a) an assessment of the incapacitated person's physical, mental, and emotional needs and of such person's ability to perform or assist in activities of daily living, and (b) the guardian's specific plan for meeting the identified and emerging personal care needs of the incapacitated person.
     (2) To file annually or, where a guardian of the estate has been appointed, at the time an account is required to be filed under RCW 11.92.040, a report on the status of the incapacitated person, which shall include:
     (a) The address and name of the incapacitated person and all residential changes during the period;
     (b) The services or programs which the incapacitated person receives;
     (c) The medical status of the incapacitated person;
     (d) The mental status of the incapacitated person;
     (e) Changes in the functional abilities of the incapacitated person;
     (f) Activities of the guardian for the period;
     (g) Any recommended changes in the scope of the authority of the guardian;
     (h) The identity of any professionals who have assisted the incapacitated person during the period.
     (3) To report to the court within thirty days any substantial change in the incapacitated person's condition, or any changes in residence of the incapacitated person.
     (4) Consistent with the powers granted by the court, to care for and maintain the incapacitated person in the setting least restrictive to the incapacitated person's freedom and appropriate to the incapacitated person's personal care needs, assert the incapacitated person's rights and best interests, and if the incapacitated person is a minor or where otherwise appropriate, to see that the incapacitated person receives appropriate training and education and that the incapacitated person has the opportunity to learn a trade, occupation, or profession.
     (5) Consistent with RCW 7.70.065, to provide timely, informed consent for health care of the incapacitated person, except in the case of a limited guardian where such power is not expressly provided for in the order of appointment or subsequent modifying order as provided in RCW 11.88.125 as now or hereafter amended, the standby guardian or standby limited guardian may provide timely, informed consent to necessary medical procedures if the guardian or limited guardian cannot be located within four hours after the need for such consent arises. No guardian, limited guardian, or standby guardian may involuntarily commit for mental health treatment, observation, or evaluation an alleged incapacitated person who is unable or unwilling to give informed consent to such commitment unless the procedures for involuntary commitment set forth in chapter 71.05 or 72.23 RCW are followed. Nothing in this section shall be construed to allow a guardian, limited guardian, or standby guardian to consent to:
     (a) Therapy or other procedure which induces convulsion;
     (b) Surgery solely for the purpose of psychosurgery;
     (c) Other psychiatric or mental health procedures that restrict physical freedom of movement, or the rights set forth in RCW 71.05.370.
     A guardian, limited guardian, or standby guardian who believes these procedures are necessary for the proper care and maintenance of the incapacitated person shall petition the court for an order unless the court has previously approved the procedure within the past thirty days. The court may order the procedure only after an attorney is appointed in accordance with RCW 11.88.045 if no attorney has previously appeared, notice is given, and a hearing is held in accordance with RCW 11.88.040.
     The limitations in subsection (5) of this section are not intended to apply to a guardian of the person who has been granted specific authority to exercise an incapacitated person's decision making regarding residential placement in order to obtain the services available under Title 71A RCW.

Sec. 4   RCW 11.92.190 and 1996 c 249 s 11 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 incapacitated person)) or in accordance with the residential placement provision of RCW 11.88.095(2)(g), 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 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 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. 5   1998 c 216 s 9 (uncodified) is amended to read as follows:
     Sections ((1 and)) 5 through 8 of this act expire June 30, 2003.

Sec. 6   RCW 71A.10.060 and 1989 c 175 s 139 are each amended to read as follows:
     (1) Whenever this title requires the secretary to give notice, the secretary shall give notice to the person with a developmental disability and, except as provided in subsection (3) of this section, to at least one other person. The other person shall be the first person known to the secretary in the following order of priority:
     (a) A legal representative of the person with a developmental disability;
     (b) A parent of a person with a developmental disability who is eighteen years of age or older;
     (c) Other kin of the person with a developmental disability, with preference to persons with the closest kinship;
     (d) The Washington protection and advocacy system for the rights of persons with developmental disabilities, appointed in compliance with 42 U.S.C. Sec. 6042; or
     (e) A person who is not an employee of the department or of a person who contracts with the department under this title who, in the opinion of the secretary, will be concerned with the welfare of the person.
     (2) Notice to a person with a developmental disability shall be given in a way that the person is best able to understand. This can include reading or explaining the materials to the person.
     (3) A person with a developmental disability may in writing request the secretary to give notice only to that person. The secretary shall comply with that direction unless the person has a guardian appointed over his or her person, or the secretary denies the request because the person may be at risk of losing rights if the secretary complies with the request. The secretary shall give notice as provided in subsections (1) and (2) of this section. On filing an application with the secretary within thirty days of receipt of the notice, the person who made the request has the right to an adjudicative proceeding under RCW 71A.10.050 on the secretary's decision.
     (4) The giving of notice to a person under this title does not empower the person who is given notice to take any action or give any consent, unless otherwise authorized by law.

Sec. 7   RCW 71A.10.070 and 1989 c 175 s 140 are each amended to read as follows:
     (1) Whenever this title places on the secretary the duty to consult, the secretary shall carry out that duty by consulting with the person with a developmental disability and, except as provided in subsection (2) of this section, with at least one other person. The other person shall be in order of priority:
     (a) A legal representative of the person with a developmental disability;
     (b) A parent of a person with a developmental disability who is eighteen years of age or older;
     (c) Other kin of the person with a developmental disability, with preference to persons with the closest kinship;
     (d) The Washington protection and advocacy system for the rights of persons with developmental disabilities, appointed in compliance with 42 U.S.C. Sec. 6042; or
     (e) Any other person who is not an employee of the department or of a person who contracts with the department under this title who, in the opinion of the secretary, will be concerned with the welfare of the person.
     (2) A person with a developmental disability may in writing request the secretary to consult only with that person. The secretary shall comply with that direction unless the person has a guardian appointed over his or her person, or the secretary denies the request because the person may be at risk of losing rights if the secretary complies with the request. The secretary shall give notice as provided in RCW 71A.10.060 when a request is denied. On filing an application with the secretary within thirty days of receipt of the notice, the person who made the request has the right to an adjudicative proceeding under RCW 71A.10.050 on the secretary's decision.
     (3) Consultation with a person under this section does not authorize the person who is consulted to take any action or give any consent, unless otherwise authorized by law.