Background: Guardianship is a legal process through which a guardian is given the power to make decisions for a person who is determined to be incapacitated. The court may establish a guardianship over the person, the person's estate, or both. Guardians or limited guardians must inform the court of a designated standby guardian to serve the incapacitated individual if the original guardian dies or becomes incapacitated. When a court appoints a standby guardian (who serves if the original guardian cannot), the court must issue letters of guardianship authorizing the standby guardian to act on behalf of the incapacitated person. There is no explicit statutory requirement to issue letters of guardianship to guardians or limited guardians.

Guardians and limited guardians must file annual reports regarding the status of an incapacitated person's well-being. While guardians and limited guardians of estates typically must file accounts annually, the courts may schedule the filing requirement at intervals up to 36 months if the value of the estate does not exceed more than twice the homestead exemption. Guardians of estates belonging to minors need not file accounts unless the guardian has withdrawal powers.

Upon the termination of a guardianship, guardians and limited guardians must file a final report and/or account within 30 days of the termination of the guardianship; and petition the court for an order settling an account within 90 days of the termination.

In 2007 the Elder Law Section of the Washington State Bar Association (WSBA) formed a task force to examine the performance of the guardianship system in Washington, and issued a final report containing recommendations.

Summary of Bill (Recommended Amendments): Guardians or lay guardians who are not certified professional guardians or financial institutions must complete any training made available by the Administrative Office of the Courts or the superior court overseeing the appointment. A court may extend the deadline for training or waive the requirement for good cause.

When a court issues an order appointing a guardian or limited guardian, the clerk must issue letters of guardianship authorizing the guardian or limited guardian to act on behalf of the incapacitated person. A pattern form for the letters of guardianship is set forth in the act. The order appointing a guardian or limited guardian must also include whether a review hearing is required upon filing the initial personal care plan.

The deadline for the annual account or report must be set within 90 days of the anniversary of the date of appointment. All court orders approving accounts and reports and the order appointing a full or limited guardianship of the person or estate must contain a guardianship summary, the content and form of which are specified in the act.

The following deadlines are changed to 90 days:

Within 90 days of a guardian's appointment a limited guardian must designate a standby guardian and, guardians are required to notify interested persons of their right to request special notice on the guardianship's proceedings.
Within 90 days after termination of the appointment, a guardian or limited guardian must file a written verified account of the administration for court approval.

If a guardian or limited guardian fails to file an intermediate account and/or report or fails to appear at a hearing, the superior court may enter an order to show cause and require the guardian to appear at a show cause hearing. At the show cause hearing the court may, but is not required to, enter an order for one or more of the following listed actions: the authority to direct the guardian or limited guardian to appear before the court subject to contempt sanctions, appoint a guardian ad litem, require guardian training, remove the guardian or limited guardian, or take other acts as the court deems just and equitable.

EFFECT OF CHANGES MADE BY JUDICIARY COMMITTEE (Recommended Amendments): The language requiring an automatic review hearing for accounts and reports filed by guardians and limited guardians is removed. The requirement that letters of guardianship automatically expire is removed. The new filing fees are removed.

The provision requiring a court to take action against a guardian that has failed to file a required report or account is modified to instead allow the court the discretion to enter an order to show cause and require the guardian to appear at a show cause hearing. At the show cause hearing the court may, but is not required to, enter an order for one or more of the listed actions.

The method by which a guardian may request a waiver from the training requirements is clarified to allow for a petition or other method as prescribed by local court rule. A list of factors are provided for the court to consider, when determining whether good cause exists to grant a waiver of the training requirements for a guardian.

Staff Summary of Public Testimony on Substitute House Bill: PRO: This bill deals with issues that have gone on way too long; the guardianship process needs some side bars. This bill contains great policy; we don't want to put any undue hardships on local governments who are in the same financial shape that the state finds itself.

There is some really strong evidence that guardians are not being properly monitored by the courts. The WSBA taskforce was formed as a result of some concerns that were actually brought to the Legislature. What we found was that there was a lot that we don't know about guardians in this state. There is no statewide tracking system. Some counties do a much better job than others in monitoring guardians. Regarding your question about the reasons for training, many people cite that they were not told that they had a duty to report or provide an accounting to the court on a regular basis. This results in unnecessary litigation, and it is often impossible to reconstruct what has happened with a person's estate over the years without the regular reports to the court.

This bill brings some much needed accountability to the system. We used expiring letters of guardianship and the automatic annual review hearing to keep guardians filing reports and accounts. This bill is not about the many guardians that are doing a good job, but rather is trying to provide some system to begin bringing those guardians that are not doing what they are supposed to be doing into compliance. This will also help courts that may not be doing a good job monitoring guardians. When we go out to randomly visit guardians and incapacitated persons, what we find is that some guardians are not doing their job. We need to remember that guardianships are about incapacitated persons, and the state needs to make sure that guardians are doing their job. Lay guardians serve a critical function, and many of these people are doing a great job. However, we need to make sure that all lay guardians get some very basic training and information which will help to prevent some of the problems that we've encountered.

CON: The reporting requirements, including the due date, was clearly stated in the letters of guardianship that we received at appointment. We have always complied and the current system works just fine. What this bill does is make guardians that are doing a good job pay the price of the court and the lawyers not doing their job. The care of an incapacitated person is overwhelming and the burdens that this bill puts on family guardians is not necessary. This will discourage families to be guardians.

There is no need to spend money on developing training; the book we were given by King County is more than adequate if you can read. Instead of a standby guardian you ought to use a co-guardian like my family uses to care for my son. Lots of families in Yakima county are financially strapped and the court system has recently had to lay off court employees. This bill will add financial burdens to some families, and the county court which may be too much during this economy. I think the bill is probably well intentioned, but my lawyer says that it ought to better reflect the different circumstances a guardian who cares for a developmentally disabled adult child has from a guardian who cares for an elderly adult. My daughter is on Medicaid, and she can't have an estate worth more than $2,000. The court I work with is very specific about when I have to file my reports and I don't have a problem. Lay guardians are mostly family members, and this bill paints with too broad a brush.

OTHER: The training the bill requires consists of a short video, which already exists on the AOC Office of Public Guardian's website; so, there is no additional cost to develop the training.