HOUSE BILL REPORT

ESSB 6868

BYSenate Committee on Children & Family Services (originally sponsored by Senators Stratton, Smith, Bailey, Vognild, Talmadge, Craswell, Owen, McMullen, Saling and West)

Modifying guardianship provisions regarding incapacitated persons.

House Committe on Judiciary

Majority Report:  Do pass as amended.  (17)

      Signed by Representatives Appelwick, Chair; Crane, Vice Chair; Padden, Ranking Republican Member; Brough, Dellwo, Forner, Hargrove, Inslee, P. King, R. Meyers, Moyer, H. Myers, Schmidt, Scott, D. Sommers, Tate and Wineberry.

House Staff:Pat Shelledy (786-7149)

AS PASSED HOUSE MARCH 1, 1990

BACKGROUND:

The superior court judges have authority to appoint guardians for "incompetent" people and authority to appoint limited guardians for "disabled people."  "Incompetent" people are defined as those people who cannot manage their property or take care of themselves due to mental illness, developmental disability, senility, habitual drunkenness, excessive use of drugs, other mental incapacity, or are under the age of majority. "Disabled" people are those people that require protection and assistance for the same reasons as incompetent people but are not fully incompetent.  Limited guardianships are more specific and are designed to address the particular disabilities of the person.

A person or "principal" may nominate, through the use of the durable power of attorney, another person to become the principal's guardian if the person becomes disabled.  If the principal has not nominated a guardian through the durable power of attorney, the court may appoint a guardian.  A guardian may be any "suitable person" over 18 years of age or any parent.  Trust companies, banks, and nonprofit corporations may also be guardians to handle the person's estate.  Any "interested person or entity" can file a petition for a guardianship and a hearing must be held on the petition within 45 days.

Venue for the action lies in the county where the alleged incompetent person lives or if the person is institutionalized, the county where the person lived prior to commitment or the county where the person's parent lives. Upon receipt of a petition for appointment of a guardian, the court must appoint a guardian ad litem to represent the best interests of the alleged incompetent or disabled person. The guardian ad litem must be a person who the court determines to be free of influence from anyone interested in the result of the proceedings. The guardian ad litem must interview the person and provide a report to the court with recommendations concerning the appointment of a guardian.  The guardian ad litem has authority to consent to emergency life-saving medical procedures pending the hearing.  The guardian ad litem must advise the alleged incompetent or disabled person of his or her rights. The guardian ad litem is entitled to a fee determined by the court.  The county must pay for the fee if requiring the incompetent person to pay the fee would result in substantial hardship to the person.

An alleged incompetent or disabled person is not entitled to notice of the filing of the petition but is entitled to notice of the hearing, has a right to a jury trial, an attorney, and to be present at the hearing.  Notice of the hearing must also be served upon the person's parent if the person is a minor, spouse, the guardian ad litem, and, any person with whom the person resides. The alleged incompetent or disabled person must be present in court unless the court waives the person's presence for "good cause." In all hearings, the court must receive a medical report from a physician who has examined the person.  The report must advise the court about the person's degree of disability and anticipated length of disability. The incompetent person is entitled to counsel at the counties expense if the person is unable to pay for an attorney or the payment would result in substantial hardship upon the person. The role of the attorney is not defined in statute.

An appointed guardian has numerous duties.  The guardian may be required to post a bond unless the ward has limited financial resources which the guardian must verify by filing a yearly income report on behalf of the ward.  The powers of the guardian vary if the guardianship is limited. Generally, the guardian is required to pay all just claims against the ward, to prepare an inventory of the ward's property, and to annually file a verified account of the administration of the estate.  The court may in its discretion allow reports to be filed every three years. The guardian also has power to consent to necessary medical procedures, education, and training.  The guardian can sue or be sued for claims against the estate of the ward. The court can remove a guardian for good reasons which must be entered on the record.

The incompetent or disabled person may lose some rights to govern their affairs depending upon the court's determination of the degree of incompetency and the court's order.

SUMMARY:

The guardianship laws are substantially revised and updated.

INTENT.  The intent section emphasizes that the laws are designed to protect individual liberty and autonomy and that the restrictions on a person's exercise of that autonomy should be limited to the minimum extent to protect the person.

DEFINITIONS.  The terms "incompetent" and disabled" and their definitions are stricken and replaced with the new term "incapacitated persons."

A person is incapacitated as to person when the superior court determines the person has a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety.

A person is incapacitated as to the person's estate when the superior court determines the individual is at significant risk of financial harm due to a demonstrated inability to adequately manage property or financial affairs.

The determination is legal not medical. Age, eccentricity, poverty, or medical diagnosis alone is insufficient to justify a finding of incapacity. A person may also be incapacitated due to being under age of majority.

VENUE.  Venue is expanded to include the county where the alleged incapacitated person's (AIP) spouse or parent resides. If the AIP has changed residency within one year of filing the petition, any interested person may move for a change of venue to the AIP's last place of residence. The court shall grant the change of venue if the change is in the best interests of the AIP and would promote a more complete consideration of the issues.

RIGHT TO VOTE.  The imposition of a full guardianship will create the presumption that the person is incompetent to rationally exercise the right to vote and will lose the right to vote unless the court specifically finds the person is capable of rationally exercising the franchise.  Imposition of a limited guardianship may result in the loss of the right to vote if the court finds that the person in incompetent to rationally exercise the franchise.  The guardian ad litem must evaluate the person's ability to vote and advise the court.

PETITIONS FOR GUARDIANSHIP.  A person who files a petition for guardianship is immune from liability for filing the petition if the petitioner acts in good faith and upon a reasonable basis.

In addition to existing requirements for the content of petitions, the contents of the petition must include an explanation of why no alternative to guardianship is appropriate. If the petitioner is proposing that a specific person be appointed, the petitioner must explain why that person is being proposed and what that person's relationship to or knowledge is of any of the parties.

The attorney general may petition for appointment if no private party is able and willing to petition. The attorney general does not have to prepay a filing fee.  The court will order that the estate of the AIP will pay the filing fee unless the court finds that payment of the fee will cause a hardship on the AIP.

NOTICE.  Notice that a guardianship has been commenced must be personally served on the AIP within 15 days of the petition.  A notice format is included in the statute. The notice must include notice of the right to counsel, a jury trial, and the potential loss of a number of rights.  The type size in the notice must not be smaller than the ten-point type.

Notice of the hearing on the petition must be served on all known children not residing with a notified person in addition to other people who already must receive notice under the existing statute.

The presence of the AIP at the hearing may not be waived due to mere inconvenience.

RIGHT TO COUNSEL.  An AIP has the right to counsel at any stage of the guardianship proceedings.  In addition to the existing provisions that require appointment of counsel at public expense if the person cannot afford counsel or the expense will result in substantial hardship, counsel will also be appointed when the person does not have practical access to funds to pay for an attorney, in which case the court may later order reimbursement for the costs of counsel. The appointed attorney will be given a period of not less than three weeks to prepare for the guardianship hearing.

ROLE OF COUNSEL.  The role of the attorney is distinct from that of the guardian ad litem and is defined as one of an advocate for the AIP. The attorney may not substitute the attorney's judgment for that of the AIP. The attorney may withdraw from the case if the AIP does not communicate with the attorney. If the court allows the withdrawal, the court after a hearing, may allow the AIP to proceed without an attorney.  Attorneys' fees are subject to court approval.PSYCHOLOGIST'S AND PHYSICIAN'S REPORTS.

A psychologist's report may be required to be submitted to the court in addition to or instead of a physician's report. The examiner must have personally examined the AIP within 30 days of the report and must have expertise in the type of disorder allegedly afflicting the AIP. The report must contain, in addition to existing requirements, detailed information about the examiner's background, pertinent information about the AIP's mental or medical health, the sources of information the examiner has relied upon to support the examiner's conclusions, and a recommendation about the specific assistance the AIP may need.

COUNTY REGISTRY FOR GUARDIAN AD LITEM.  By September, 1, 1991, each county must establish a central registry of persons who are willing and qualified to serve as guardians ad litem. The court must choose guardians ad litem from the registry except in extraordinary circumstances.  To be eligible for the registry a person must present a written statement of qualifications to be a guardian ad litem, the person's training and experience in the needs of the elderly, physically or mentally disabled, and complete a court approved training program. The courts in each county must approve a training program by June 1, 1991.  The Department of Social and Health Services aging and adult administration must develop a model training program and must convene an advisory group. If a superior court fails to adopt a local training program by September 1, 1991, the courts must use the model program.

The guardian ad litem's written statement of qualifications must be included in the record.

The duties of the guardian ad litem are described in more detail and expanded to include meeting with the person who may be appointed as guardian and evaluating that person's qualifications, and consulting with relatives, friends, and other persons who have a significant interest in the AIP's welfare. The guardian ad litem must provide the court with a more detailed report with recommendations about the nature and extent of a guardianship, who should be advised of their right to request a notice of proceedings, and an explanation of the AIP's response to being advised of the AIP's rights, if no attorney has been appointed. The guardian ad litem must also make a recommendation about whether counsel should be appointed for the AIP. The report shall be served upon the AIP and the AIP's spouse, all children not living with a notified person, and any one who has requested special notice.

FINDINGS OF INCAPACITY.  The court must base its order establishing a limited or full guardianship based on the evidence and not on the agreement of the parties. The provisions of the order must contain specific provisions regarding the extent of the guardianship and limitations on the ward.

The court must determine whether incapacity is due to a developmental disability and if so, whether the incapacity is expected to continue indefinitely.  If so, and the person's estate is less than $60,000, exclusive of real property, the court may modify or waive certain reporting requirements of the guardian.

REMOVAL OF GUARDIANS.  A more detailed procedure is designed for removal of guardians or modification of the guardianship. Any person including the incapacitated person may move the court to modify the terms of the guardianship or remove the guardian.  The moving party may move for an order to show cause on the issue.  If an unrepresented ward moves the court, the court must review the motion the next day and either set a hearing, appoint a guardian ad litem to investigate the issue, or deny the motion if it appears frivolous.  If the court denies the motion, the court must support the denial in writing.  The court clerk must mail a copy of the order denying the petition to the applicant and the guardian, if known.

TERMINATION OF GUARDIANSHIP FOR A MINOR. A new procedure is implemented to terminate a guardianship for minors upon the guardian filing a declaration of completion when the minor attains legal age and all functions of the guardian have been completed.  The termination will take effect without a court hearing if the guardian gives the minor proper notice of the termination and the minor does not request an accounting or challenge fees. If the minor waives notice after obtaining legal age, the guardianship can be terminated automatically without an accounting upon filing the declaration.

ACCOUNTING OF THE ADMINISTRATION. The information a guardian must provide in the guardian's annual report of an accounting of the administration is expanded to contain identification of the property in the estate, expenditures, adjustments to the value of the property, and an update on the value of the guardian's bond. The court may allow reports at intervals of up to 36 months for estates with assets having a value of not more than twice the homestead exemption ($60,000), exclusive of real property. A guardian of a minor does not have to file an annual report if the funds are held in a blocked account unless the guardian requests a withdrawal from the account. The guardian has to report a substantial change in the account, not just an increase.  A review hearing must be set.  The court may wave certain reporting requirements if the court had determined that the person's incapacity is due to developmental disability, which is expected to continue indefinitely and the person's estate is under $60,000 in value.

PERSONAL CARE PLAN.  The guardian or limited guardian must also file a personal care plan for the AIP within three months of the appointment.  The information that must be contained in the personal care plan is described. After the initial personal care plan, the guardian must update the personal care plan annually unless the guardian is appointed for the estate in which case the update may, in the court's discretion, be filed at intervals up to 36 months.  The court may waive certain reporting requirements if the court has found that the person's incapacity is due to developmental disability, which is expected to continue indefinitely and the person's estate is under $60,000 in value.

PROPERTY IN FINANCIAL INSTITUTIONS.  A bank, trust company, savings and loan association or insurance company must forward a report to the court whenever a guardian or limited guardian obtains access to the AIP's assets in the financial institution. The information that must be contained in the report is specified.  Contents of a safety deposit box belonging to any AIP must be inventoried before it is released to the guardian and a copy of the inventory must be attached to the report to the court.

LAWSUITS.  The guardian or limited guardian of the estate must report to the court any action commenced against the AIP and must obtain court approval prior to commencing legal action on behalf of the AIP.

NOTICE OF SPECIAL PROCEEDINGS REQUESTS.  Provisions regarding requests for notices of special proceedings are amended so that individuals who request special notice must specify the actions for which the applicant requests advance notice. If the applicant fails to specify the actions, the guardian must send copies of all documents filed with the court and advance notice of the guardian's application for court approval of any action in the guardianship proceedings.

COMPENSATION OF GUARDIANS AND GUARDIANS AD LITEM.  Guardians and limited guardians will not be compensated at public expense. Attorneys who act as guardians or limited guardians must separately account for time spent for legal services and other guardianship services.

TECHNICAL CROSS REFERENCES:  For purposes of giving informed consent for emergency health care services, the definition of incompetence is retained to match the cross reference in the emergency health care statutes.  For purposes of other references to "incompetent," disabled," or "not legally competent," as those terms are used throughout the revised code of Washington, those terms will be interpreted to mean "incapacitated" for purposes of this chapter.

Fiscal Note:      Available.

Effective Date:The bill takes effect July 1, 1991.

House Committee ‑ Testified For:    Bill Crowell, AARP; Tom O'Brien, Washington State Bar Association; Greg Vigdor, Washington State Hospital Association (with concerns); Mary Beth O'Conner, Group Health (with concerns); Carrie Bashaw, Washington Health Care Association (with concerns); Pat Lashaunary, Department of Social and Health Services; Mike Redman (with fiscal concerns); Bob Freudenstein, County Clerks (with concerns); Siri Woods, County Clerks with concerns); and Lisa Brodoff, Puget Sound Legal Services.

House Committee - Testified Against:      Tom Dear, Friends of Rainier School.

House Committee - Testimony For:    Numerous abuses exist in guardianship proceedings.  The bill will add additional protections for people subject to guardianship proceedings.  Alternatives to guardianship will also be encouraged.

House Committee - Testimony Against:      The requirements are too burdensome and intervention too great with families who are trying to take care of loved ones.  Incompetent people should not be allowed to vote.  Terminology should remain the same.