SENATE BILL REPORT

SB 5162

BYSenators Stratton, Bailey, Owen, McMullen, West and Saling

Regarding guardianships.

Senate Committee on Children & Family Services

Senate Hearing Date(s):January 17, 1989; February 24, 1989

Majority Report:  That Substitute Senate Bill No. 5162 be substituted therefor, and the substitute bill do pass.

      Signed by Senators Smith, Chairman; Craswell, Vice Chairman; Bailey, Stratton, Vognild.

Senate Staff:Jennifer Strus (786-7472)

                  February 27, 1989

AS REPORTED BY COMMITTEE ON CHILDREN & FAMILY SERVICES, FEBRUARY 27, 1989

BACKGROUND:

The guardianship statute was intended to be used to protect an alleged incompetent person; however, it has also been used to exploit alleged incompetent persons.

Guardianships are used to take over a person's decision-making powers when that person is no longer able to make decisions on his or her behalf.  If a guardianship is granted, which in most cases it will be, the alleged incompetent person could lose many of his or her rights, including the right to decide where to live and with whom to live, the right to drive, the right to marry and the right to vote.

Among other problems noted, the guardianship statute still contains a rather outdated definition of "incompetent" which includes the term "senility."  This definition permits the court to find a person "incompetent" if he or she is aged and leads a different lifestyle.  In addition, the guardianship statute has two other major areas of weakness:  (1) the process used by the court to determine incompetency is procedurally lax, which can result in continued abuse or exploitation; and (2) the petitioning party sometimes abuses the guardianship process and the laws are inadequate to protect the incompetent person once the process has been initiated.

SUMMARY:

The intent of the statute is to fashion a guardianship that is the least restrictive and still assist the alleged incapacitated person (AIP)in needed areas.  Limited guardianships are deleted from the statute.

Incapacity is redefined using a functional limitation approach.  Only if a person is unable to provide for his or her personal needs or manage his or her property or financial affairs and through such inability is likely to sustain or has sustained substantial harm can the court find that the person is incapacitated.  Old age or a different lifestyle are insufficient indications of incapacity.

A petition for guardianship must state whether alternatives to a guardianship were attempted before the petition was filed.  If no alternatives were attempted, the petition must contain the reasons why.  An affidavit by the petitioner must also be filed with the petition.  The affidavit must contain a factual statement indicating why the appointment of a guardian is necessary along with a statement of the petitioner's interest in the appointment of a guardian, if any.

Notice of the guardianship proceeding must be personally served on the AIP and sent to the AIP's adult children, siblings, spouse, attorney-in-fact, and parents.

All guardianship petitions must be heard within 90 days from the date of filing.

The AIP must be present at all guardianship proceedings relating to him or her.  Final hearings may be held in a closed court at the AIP's request.

The AIP shall be represented by counsel unless he or she waives the right to counsel.  The court must appoint counsel within 10 days of the filing of the petition.  The court must honor the AIP's preference for counsel if that preference has been made known to the court. 

A hearing must be held to determine whether a person is incapacitated.  At the hearing, the court must inquire into the AIP's functional limitations and ascertain the person's ability to participate in or perform activities of daily living.  If the court determines that the AIP is able to care for himself or herself, the court must dismiss the petition.  If the court finds that the petition was frivolously brought, it must order the petitioner to pay all costs and fees incurred on behalf of the AIP.  All court proceedings must be on the record.

If the court determines that a guardian is necessary, the court shall state with specificity in the order appointing a guardian what powers the guardian has.  The guardian does not have a power that is not specifically granted.  The letters of guardianship issued by the clerk of the court shall mirror the guardianship order.

The guardian ad litem (GAL) is chosen from a registry maintained by the superior court.  To be eligible for the registry, a person must have two years professional experience in gerontology, child development, physical disabilities, developmental disabilities or mental health.

The AIP has the right to be examined by an independent evaluation team.  The AIP or his or her attorney may waive the right to the evaluation team.  The GAL who is appointed selects the members of the evaluation team and the members must be approved by the court.  The evaluation team must be a well-rounded and multi-disciplinary team.

The evaluation team determines whether the AIP has functional limitations sufficient to require the appointment of a guardian.  If the appointment of a guardian is necessary, the team must devise a personal care plan which the court should consider in designing the guardianship order.

The petitioner's attorney, the AIP's attorney, the GAL and the evaluation team, if any, must submit an itemized affidavit of their fees to the court for approval.  The fees shall be paid from the estate of the AIP unless to do so would work a substantial hardship on the AIP, in which event, the county shall pay the fees.

There shall be annual review hearings of the guardianship.  The court shall review the financial status of the AIP's estate as well as the AIP's physical, mental and emotional progress.  The court must determine whether the guardianship order should be modified, continued or terminated.  The court's focus must be on terminating or further restricting the guardianship order, if possible.  The guardianship order may be modified, terminated or amended other than at annual review hearings.

The clerk must notify the guardian if an annual report is past due and the court if an annual report is thirty days past due.  If a report is sixty days past due, the court shall order the guardian to file the report within fourteen days.

EFFECT OF PROPOSED SUBSTITUTE: 

The guardian ad litem must conduct the evaluation and report the results to the court.  The entire guardianship process is to be concluded within 45 days.

The presence of the alleged incapacitated person (AIP) may be waived if the AIP is in a comatose state.

The guardian ad litem has the authority to prepare or submit an application for any medical benefits for which the AIP might be eligible pursuant to RCW 74.09.

Authorization for medical procedures may not be given without first considering the AIP's values and preferences to the degree that they are known or may be determined.

Appropriation:    none

Revenue:    none

Fiscal Note:      available

Senate Committee - Testified: Ray May, Senior Citizens' Lobby and National Association of Retired Federal Employees (pro); Charles F. Muehlen, citizen (pro); Cynthia Hammer, geriatric social worker (pro); Mike Redman, Washington Association of Prosecuting Attorneys (con); Karen Marie Thompson, Washington State Bar Association (con); Jane Boyajian, DSHS Project Director for Guardianship Reform (pro); Lisa Brodoff, Puget Sound Legal Assistance Foundation (pro); George Edensword-Breck, attorney(con)