SENATE 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.
Senate Committee on Children & Family Services
Senate Hearing Date(s):February 2, 1990
Majority Report: That Substitute Senate Bill No. 6868 be substituted therefor, and the substitute bill do pass.
Signed by Senators Smith, Chairman; Craswell, Vice Chairman; Bailey, Stratton, Vognild.
Senate Staff:Lidia Mori (786-7755)
March 3, 1990
House Committe on Judiciary
AS PASSED SENATE, FEBRUARY 9, 1990
BACKGROUND:
The Legislature enacted the guardianship statutes to protect people who have limited capabilities to govern their financial affairs or take care of themselves. It has come to light that many people for whom a guardianship has been performed have been financially exploited by their court appointed guardians. It is also believed that the existing laws do not restrict guardianships to situations where they are truly appropriate and do not contain enough standards and specificity to promote responsible and beneficial behavior on the part of those involved in the guardianship process.
SUMMARY:
Legislative intent emphasizes guardianships are utilized only when clearly warranted and are to be fashioned such that a person's liberty and autonomy are restricted to the minimum extent necessary.
The terms "incompetent" and "disabled" are replaced with "incapacitated" which is defined as having 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 estate when there is significant risk of financial harm based upon demonstrated inability to adequately manage property or financial affairs.
In the petition for guardianship or limited guardianship, an explanation must be included as to why no alternative to guardianship is appropriate. If the petitioner proposes a particular person to act as guardian ad litem there must be a description of the person's relationship to any of the parties and a statement as to why that person is suggested.
Notice that a guardianship proceeding has been commenced and a copy of the petition must be personally served on the alleged incapacitated person (AIP) not more than 15 days after the petition has been filed. The notice must contain a clear and easily readable statement of the legal rights which may be in jeopardy as well as notice that the AIP has a right to counsel and a jury trial.
The AIP must be present in court at the final hearing on the petition unless this is waived by the court for good cause other than mere inconvenience. The AIP has a right to counsel and the court will provide counsel at public expense if the AIP is unable to afford one or if the expense would result in a substantial hardship. If the AIP has no practical access to funds, the court will appoint counsel and has the discretion to impose a reimbursement requirement in the final order.
A report from a physician or a psychologist who has personally examined the AIP within the last 30 days must be provided to the court before a guardian or limited guardian may be appointed. The report is required to contain certain information in a specified format.
A registry of people who are willing and qualified to serve as guardians ad litem must be assembled by the superior court of each county by September 1, 1991. The court is directed to choose a guardian ad litem from this list except in extraordinary circumstances. In order to be eligible for this registry, a person must submit certain information and complete a training program approved by the court. A model guardian ad litem training program will be developed by an advisory group consisting of individuals and representatives from qualified and knowledgeable organizations. The required duties of the guardian ad litem are specified as well as the content of the written report which is to be filed within 20 days of appointment of the guardian ad litem and at least ten days before the hearing on the petition.
Within three months after appointment, the guardian or limited guardian must file an inventory of all of the property of the AIP and must annually file a verified account of the administration of the guardianship assets. The information which must be contained in the account is specified. The court in its discretion may allow the accountings at intervals of up to 36 months for estates having a value of not more than twice the homestead exemption, exclusive of real property. Any substantial change in income or assets of the guardianship estate must be reported to the court within 30 days and a review hearing scheduled. The guardian or limited guardian must also file, within three months of appointment, a personal care plan for the AIP. The information which must be contained in the personal care plan is described. Guardians and limited guardians are not compensated at public expense.
A bank, trust company, savings and loan association or insurance company must forward a report to the court whenever it provides a guardian access to an asset of an AIP. The information which must be contained in the report is specified. Contents of a safety deposit box belonging to an AIP must be inventoried before it is released to the guardian and a copy of the inventory attached to the report to the court.
All children of the alleged incapacitated person who are not residing with a notified person must receive notice of the hearing for appointment of a guardian or limited guardian. They must also be sent a copy of the guardian ad litem report.
Appropriation: none
Revenue: none
Fiscal Note: available
Effective Date:July 1, 1991
Senate Committee - Testified: PRO: Evan Iverson; William C. Crowell, AARP; Dennis Mahar, WA Association of Area Agencies on Aging; Evan O. Thomas, WA State Bar Association; Ray May; Kren Thompson; WA State Bar Association; CON: Robert McKay, WA Association of Prosecuting Attorneys; Cynthia Hammer; Frank Winslow, Alzheimer Society of WA
HOUSE AMENDMENTS:
For the purpose of giving informed consent for health care, an "incompetent" person is a person who is incompetent due to mental illness, developmental disability, senility, habitual drunkenness, excessive use of drugs, or other mental incapacity, and unable to manage his or her property or provide personal care.
Notice that a guardianship proceeding has been commenced shall include a clear and easily readable statement written in capital letters, double-spaced and in a type size not smaller than ten-point type.
If a court determines that a person is incapacitated and that a guardian or limited guardian should be appointed, the court must also determine whether the incapacity is a result of a developmental disability and whether it can be expected to continue indefinitely.
If the court finds that a person is incapacitated as a result of a developmental disability that is expected to continue indefinitely and the person's estate has a value, exclusive of real property, of not more than twice the homestead exemption, the court may allow the guardian or limited guardian to file their reports at intervals of up to 36 months. The court may also waive or modify other reporting requirements that the court considers unduly burdensome or inapplicable.
When a court imposes a full guardianship for an incapacitated person, the person is considered incompetent for purposes of exercising the right to vote unless the court specifically finds that the person is rationally able to exercise the right to vote. An incapacitated person for whom a limited guardianship has been imposed may lose the right to vote if the court determines that the person is incompetent for purposes of exercising the right to vote. A guardian ad litem must provide the court with a written report which must include an evaluation of the incapacitated person's mental ability to rationally exercise the right to vote and the basis upon which the evaluation is made.