Washington State

House of Representatives

Office of Program Research

BILL

ANALYSIS

Judiciary Committee

SB 5691

This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.

Background:

Any person or entity may petition a superior court for the appointment of a guardian or limited guardian for an allegedly incapacitated person. In determining the disposition of a petition for guardianship, the court's order must be based on findings as to the capacities, conditions, and needs of the alleged incapacitated person.

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

A guardian may be a lay guardian (generally a family member or friend of the alleged incapacitated person) or a professional guardian. Lay guardians must be over 18 years of age and meet certain other requirements, including completing an online training video or web cast made available by the Administrative Office of the Courts. Professional guardians charge a fee to provide guardianship services and are regulated by the Certified Professional Guardianship Board.

Modification or Termination of a Guardianship. At any time after the establishment of a guardianship, the court may, for good reason, modify or terminate the guardianship, replace a guardian or limited guardian, or modify the authority of a guardian or limited guardian. This action may be based on the court's own motion, a motion by an attorney for a person or entity, a motion by a person or entity representing themselves, or based on a written complaint. The court may grant relief as it deems just and in the best interest of the incapacitated person. For any hearing to modify or terminate a guardianship, the incapacitated person shall be given reasonable notice of the hearing and of the incapacitated person's right to be represented by counsel.

Summary of Bill:

A guardianship court must modify or terminate a guardianship when a less restrictive alternative, such as a power of attorney or a trust, will adequately provide for the needs of an incapacitated person.

Motion for Less Restrictive Alternative. In any motion to modify or terminate a guardianship and replace it with a less restrictive alternative, the court should consider:

any recent medical reports;
whether a condition is reversible;
testimony of the incapacitated person;
testimony of persons most closely related by blood, marriage, or state registered domestic partnership to the incapacitated person;
testimony of persons entitled to notice of special proceedings; and
other needs of the incapacitated person that are not adequately served in a guardianship or limited guardianship that may be better served with a less restrictive alternative.

Timing. All motions must be heard within 60 days, unless an extension of time is requested by a party or a guardian ad litem within the 60-day period and the extension is granted for good cause shown. An extension granted for good cause should not exceed an additional 60 days from the date of the extension request, and the court must set a new hearing date.