[atlas:bill]

AN ACT Relating to advance directives for mental health treatment; amending RCW 11.94.010, 11.88.010, and 11.88.030; adding a new chapter to Title 71 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature declares that a person with capacity has the ability to control decisions relating to his or her own mental health care. The legislature recognizes that an advance directive can be an essential tool for a person to express his or her choices before the effects of mental illness deprive the person of the power to express his or her instructions and preferences for mental health treatment. The legislature affirms that, pursuant to other provisions of law, a mental health advance directive created under this act should be respected by medical and mental health professionals, guardians, attorneys-in-fact, and other surrogate decision makers acting on behalf of the person who created it.

NEW SECTION. Sec. 2. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Adult" means any person who has attained the age of majority as defined in RCW 26.28.010 or an emancipated minor.

(2) "Incapacitated person" means a person who is not a person with capacity.

(3) "Mental disorder" has the meaning given in RCW 71.05.020.

(4) "Mental health advance directive" or "directive" means a written document in which the person makes a declaration of instructions or preferences or appoints an agent to make decisions on behalf of the person regarding the person's mental health treatment and that is consistent with the provisions of this act.

(5) "Mental health professional" has the meaning given in RCW 71.05.020.

(6) "Person with capacity" means an adult who has the ability to understand the significance of a directive or its revocation and who acts free from fraud and undue influence.

(7) "Professional person" has the meaning given in RCW 71.05.020.

(8) "Psychiatrist" has the meaning given in RCW 71.05.020.

NEW SECTION. Sec. 3. (1) For the purposes of this act, an adult is presumed to be a person with capacity. A person who has been declared an incapacitated person may subsequently reassert his or her capacity and it shall be presumed that the person has regained capacity until he or she is declared otherwise.

(2) For the purposes of this act, no adult may be declared an incapacitated person except by: (a) Court order; or (b) the opinion of two mental health professionals, at least one of whom is a psychiatrist.

NEW SECTION. Sec. 4. (1) A person with capacity may create a directive.

(2) A directive may include any provision relating to mental health treatment or the care of the person or the person's personal affairs. Without limitation, a directive may include:

(a) The person's preferences and instructions for mental health treatment;

(b) Consent to specific types of mental health treatment;

(d) Consent to admission to and retention in a facility for mental health treatment;

(e) Descriptions of situations that may cause the person to experience a mental health crisis;

(f) Suggested alternative responses that may supplement or be in lieu of direct mental health treatment, such as treatment approaches from other providers;

(g) Appointment of an agent to make mental health treatment decisions on the person's behalf, including authorizing the agent to provide consent on the person's behalf to voluntary admission to inpatient mental health treatment consistent with section 7 of this act;

(h) Consent to have the person's health care information released to other providers or third parties; and

(i) The person's nomination of a guardian or limited guardian for consideration by the court if guardianship proceedings are commenced.

(3)(a) A directive may be combined with or be independent of the power of attorney authorized in chapter 11.94 RCW or guardianship authorized in chapter 11.92 RCW, so long as the processes for each are executed in accordance with its own statutes. If a directive authorizes the appointment of an agent, the provisions of chapter 11.94 RCW shall apply unless otherwise stated in this chapter.

(b) Unless provided otherwise in either document, the directive or power of attorney most recently created shall be construed to be the person's mental health treatment preferences and instructions.

NEW SECTION. Sec. 5. (1) A directive shall:

(a) Be in writing;

(b) Contain language that clearly indicates that the person intends to create a directive;

(d) Be witnessed in writing by at least two adults, each of whom shall certify that he or she personally knows the person, was present when the person dated and signed the directive, and that the person did not appear to be an incapacitated person.

(2) A witness may not be any of the following:

(a) A person designated to make health care decisions on the person's behalf;

(b) A professional person directly involved with caring for the person at the time the directive is executed;

(c) An owner, operator, or relative of an owner or operator of a health care facility or long-term care facility in which the person is a patient or resident;

(d) A person who is related by blood, marriage, or adoption to the person; or

(e) A person who is declared to be an incapacitated person.

(3) A directive executed in accordance with this section is presumed to be valid.

(4) A directive may:

(a) Become operative immediately or at a later time as designated in the directive;

(b) Be revoked, in whole or in part, by the person who created it;

(d) Expire under its own terms;

(e) Be superseded or revoked by a court order. To the extent a directive is not in conflict with a court order, the directive remains effective.

(5) A directive that would have otherwise expired but is operative because the person is an incapacitated person remains operative until the person is no longer an incapacitated person.

NEW SECTION. Sec. 6. (1)(a) Upon receiving a directive, a professional person treating the person shall make the directive a part of the person's medical record and shall be deemed to have actual knowledge of its contents. Whenever possible, the professional person shall inform a person or the person's agent if he or she may be precluded from honoring all or part of the directive based on the reasons in subsection (3) of this section.

(b) If no physician-patient relationship has previously been established, nothing in this statute requires the establishment of a physician-patient relationship.

(2) In the absence of actual notice to the contrary, a professional person shall presume that a person who created a directive was a person with capacity at the time the directive was created and that the directive is valid.

(3) Subject to subsections (6) and (7) of this section, a professional person who has been presented with or has obtained a person's directive and who is treating the person shall act in accordance with the provisions of the directive to the fullest extent possible, consistent with reasonable medical practice, the availability of treatments, and applicable law. If the professional person is at any time unable to comply, the professional person shall offer to withdraw from treating the person.

(4) If the directive authorizes the appointment of an agent, the agent has the same right as the person to receive and review the person's medical records. If the person consents in the directive to having his or her health care information released to other providers or third parties, the professional person's disclosure of health care information shall not be a violation of chapter 70.62 RCW.

(5) The professional person shall obtain the person's informed consent regarding all mental health treatment decisions unless the person has waived the right to informed consent. Treatment under chapters 71.05 and 71.34 RCW shall be provided pursuant to the provisions of those chapters, notwithstanding the requirement for informed consent under this subsection.

(6) A professional person who is treating a person involuntarily detained under chapter 71.05 or 71.34 RCW shall act in accordance with the provisions of the person's directive to the fullest extent possible and as permitted by the applicable involuntary detention laws, consistent with reasonable medical practice and the availability of treatment.

(7) The professional person may provide treatment that is inconsistent with specific preferences or instructions in the directive if the directive authorizes the professional person to use his or her best medical judgment in cases of emergencies.

(8)(a) A private or public agency, government entity, or professional person, or personnel acting under the direction of a professional person, or any health care facility or long-term care facility is not subject to civil liability for failure to act in accordance with a directive if that person does not have actual knowledge of the directive.

(b) A private or public agency, government entity, or professional person, or personnel acting under the direction of a professional person, or any health care facility or long-term care facility is not subject to civil liability for providing, in good faith, mental health treatment to a person in accordance with the person's directive.

NEW SECTION. Sec. 7. (1) If a person consents in the directive, or authorizes an agent to consent on the person's behalf, to voluntary admission to inpatient mental health treatment, the admission may not exceed seventy-two hours. If, after the seventy-two hour period, the person does not consent to remain for additional treatment, the patient must be released during reasonable daylight hours following the expiration of the seventy-two hours.

(2) If a person consents in the directive, or authorizes the agent to consent on the person's behalf, to voluntary admission to inpatient mental health treatment and the person subsequently refuses to be admitted, the refusal shall be considered a revocation of that provision of the person's directive. An agent or professional person may seek a determination of the person's capacity to revoke as provided under section 8 of this act. If it is determined that the person has the capacity to revoke, then the person's refusal of voluntary admission shall be a revocation of that provision of the directive. If it is determined that the person does not have the capacity to revoke, then the directive remains valid, and the agent's consent on the person's behalf to voluntary admission to inpatient mental health treatment shall be considered a voluntary admission.

NEW SECTION. Sec. 8. (1) A person with capacity may revoke a directive in whole or in part by written statement at any time. The written statement of revocation is effective when signed by the person and it is delivered to the agent, if one is appointed, and the professional person who is responsible for the delivery of mental health treatment to the person. The professional person shall make the revocation part of the person's medical record.

(2)(a) If an agent or professional person believes that the person seeking to revoke all or part of the directive does not have capacity to revoke, the agent or professional person may seek a determination of the person's capacity within forty-eight hours of the attempted revocation.

(b) If a court or two mental health professionals, one of whom is a psychiatrist, find that it is more likely than not that the person did not have the capacity to revoke, then the attempted revocation is invalid. If the court or two mental health professionals, one of whom is a psychiatrist, find that it is more likely than not that the person had the capacity to revoke the directive, the revocation is valid. If a determination of the person's capacity to revoke has not been made within forty-eight hours of the time the agent or professional person seeks a determination, then it is presumed that the person had the capacity to revoke the directive.

(3) A person declared under this chapter to be an incapacitated person by a court or two mental health professionals, one of whom is a psychiatrist, may not revoke a directive. If an incapacitated person seeks to revoke all or part of the directive, the agent or professional person may seek a determination of the person's capacity to revoke within forty-eight hours of the attempted revocation. If a determination of the person's capacity to revoke has not been made within forty-eight hours of the time the agent or professional person seeks a determination, then it is presumed that the incapacitated person had the capacity to revoke the directive.

(4) A private or public agency, government entity, or professional person, or personnel acting under the direction of a professional person, or any health care facility or long-term care facility participating in good faith in the mental health treatment of a person is not civilly liable for failing to follow or act upon a revocation if there was no actual knowledge of the revocation.

NEW SECTION. Sec. 9. Any person with good reason to believe that a directive has been created or revoked under circumstances amounting to falsification, forgery, or coercion may petition the court for appointment of a guardian for the person.

NEW SECTION. Sec. 10. The fact that a person has executed a directive does not constitute an indication of mental disorder or that the person is not capable of providing informed consent.

NEW SECTION. Sec. 11. A person shall not be required to execute or to refrain from executing a directive as a criterion for insurance, as a condition for receiving mental or physical health services, or as a condition of admission or discharge from a health care facility or long-term care facility.

NEW SECTION. Sec. 12. A directive does not limit any authority otherwise provided in Title 71 or 10 RCW, or any other applicable state or federal laws to take a person into custody or to admit, retain, or treat a person in a health care facility.

NEW SECTION. Sec. 13. The directive may, but is not required to, be in the following form:

"PART I. STATEMENT OF INTENT TO CREATE A MENTAL HEALTH ADVANCE DIRECTIVE

I, . . . . . ., being a person with capacity, willfully and voluntarily execute this mental health advance directive so that my choices regarding my mental health care will be carried out in circumstances when I am unable to express my intent regarding my mental health care. If a guardian or other decision maker is appointed by a court to make mental health decisions for me, I intend this document to take precedence over all other means of ascertaining my intent.

The fact that I may have left blanks in this mental health advance directive should not affect its validity in any way. I intend that all completed sections be followed. If I have not expressed a choice, my agent should make the decision that he or she determines is the decision I would make if I were capable to do so.

I intend this mental health care advance directive to take precedence over any and all durable power of attorney for health care documents and/or other advance directives I have previously executed, to the extent that they are inconsistent with this document, or unless I expressly state otherwise in this directive.

I understand that I may revoke this mental health advance directive in whole or in part by written statement only if I am a person with capacity. I understand that I cannot revoke this directive if a court or two mental health professionals, at least one being a psychiatrist, find that I am an incapacitated person.

PART II. STATEMENT OF INTENT REGARDING WHEN THIS DIRECTIVE BECOMES OPERATIVE

I intend that this directive become operative (check only one):

. . . Immediately upon my signing of this directive

. . . When the following circumstances, symptoms, or behaviors occur:

.................................................................

. . . If I become incapacitated.

PART III. STATEMENT OF INTENT REGARDING PREFERENCES OR INSTRUCTIONS ABOUT TREATMENT, FACILITIES, AND PHYSICIANS

A. Preferences or Instructions About Physician(s) to Be Involved in My Treatment

I would like the physician named below to be involved in my treatment decisions: Dr. ...................... Telephone ...............

I do not wish to be treated by: .................................

B. Preferences or Instructions About Other Providers

I am receiving other treatment or care from providers who I feel have an impact on my mental health care. I would like the following additional service provider(s) to be contacted when this directive is operative:

Name .............. Profession ........... Telephone ..........

C. Preferences or Instructions About Medications for Psychiatric Treatment

. . . I consent, and authorize my agent (if named) to consent, to the following medications: ..........................................

.................................................................

. . . I specifically do not consent and I do not authorize my agent (if named) to consent to the administration of the following medications:

.................................................................

Consideration of Medications Not Listed Above (check one below)

. . . I am willing to take the medications excluded above if my only reason for excluding them is the side effects which include . . . . . . and these side effects can be eliminated by dosage adjustment or other means.

. . . I am willing to try any new medication the hospital doctor recommends.

. . . I am willing to try any new medications my outpatient doctor recommends.

. . . I do not want to try any new medications.

Medication Allergies

I have allergies to or severe side effects from the following medications: .................................................................

.................................................................

Other Medication Preferences or Instructions

I have the following other preferences or instructions about psychiatric medications: ....................................................

.................................................................

D. Preferences or Instructions About Hospitalization and Alternatives

. . . (check if desired) In the event my psychiatric condition is serious enough to require 24-hour care and I have no physical conditions that require immediate access to emergency medical care, I would prefer to receive this care in programs/facilities designed as alternatives to psychiatric hospitalizations.

I would also like the interventions below to be tried, before hospitalization is considered (check all that apply):

. . . Calling someone or having someone call you when needed

. . . Staying overnight with someone Name: . . . . Telephone: ...

. . . Having a mental health service provider come to see you

. . . Going to a crisis triage center or emergency room

. . . Staying overnight at a crisis respite (temporary) bed

. . . Seeing a service provider for help with psychiatric medications

. . . Other, specify.............................................

Authority to Consent to Inpatient Treatment

I consent, and authorize my agent (if named) to consent, to voluntary admission to inpatient mental health treatment for a period not to exceed 72 hours (check one if desired):

. . . If deemed appropriate by my agent (if named) and treating physician

. . . Under the following circumstances (specify symptoms, behaviors, or circumstances that indicate the need for hospitalization)

.................................................................

Hospital Preferences or Instructions

If hospitalization is required, I prefer the following hospitals:

.................................................................

I do not wish to be admitted to the following hospitals:

.................................................................

E. Preferences or Instructions About Pre-Emergency Interventions

I would like the interventions below to be tried before use of seclusion or restraint is considered (check all that apply):

. . . "Talk me down" one-on-one

. . . More medication

. . . Time out/privacy

. . . Show of authority/force

. . . Shift my attention to something else

. . . Set firm limits

. . . Help me to discuss/vent feelings

. . . Decrease stimulation

. . . Offer to have neutral person settle dispute

. . . Other, specify ............................................

F. Preferences or Instructions About Seclusion, Restraint, and Emergency Medications

If it is determined that I am engaging in behavior that requires seclusion, physical restraint, and/or emergency use of medication, I prefer these interventions in the following order (rank "1" for first choice, "2" for second choice, and so on):

. . . Seclusion

. . . Physical restraints

. . . Seclusion and physical restraint (combined)

. . . Medication by injection

. . . Medication in pill or liquid form

In the event that my attending physician decides to use medication in response to an emergency situation after due consideration of my preferences or instructions for emergency treatments stated above, I expect the choice of medication to reflect any preferences or instructions I have expressed in Part III C of this form. The preferences or instructions I express in this section regarding medication in emergency situations do not constitute consent to use of the medication for nonemergency treatment.

G. Preferences or Instructions About Electroconvulsive Therapy (ECT or Shock Therapy)

My wishes regarding electroconvulsive therapy are (check one):

. . . I do not consent, nor authorize my agent (if named) to consent, to the administration of electroconvulsive therapy

. . . I consent, and authorize my agent (if named) to consent, to the administration of electroconvulsive therapy

. . . I consent, and authorize my agent (if named) to consent, to the administration of electroconvulsive therapy, but only under the following conditions: .....................................................

H. Additional Instructions About My Mental Health Care

Other instructions about my mental health care: .................

.................................................................

PART IV. STATEMENT OF INTENT TO APPOINT AN AGENT

I, . . . . . ., authorize an agent to make mental health treatment decisions on my behalf. The authority granted to my agent includes the right to consent, refuse consent, or withdraw consent to any mental health care, treatment, service, or procedure, consistent with any instructions and/or limitations I have set forth in this advance directive. I intend that those decisions should be made in accordance with my expressed wishes as set forth in this document. If I have not expressed a choice in this document, I authorize my agent to make the decision that my agent determines is the decision I would make if I were capable to do so.

A. Designation of an Agent

I hereby appoint the following person as my agent to make mental health care decisions for me as authorized in this document and desire for this person to be notified immediately when this directive becomes operative:

Name: ....................... Relationship: .................

Address: ........................................................

Day Telephone: .............. Evening Telephone: ............

Agent's Acceptance

I hereby accept the designation as the agent for purposes described in this document (agent's signature) ...............................

B. Designation of Alternate Agent

If the person named above is unavailable or unable to serve as my agent, I hereby appoint the following person as my alternate agent and desire for this person to be notified immediately when this directive becomes operative:

Name: ....................... Relationship: .................

Address: ........................................................

Day Telephone: .............. Evening Telephone: ............

Alternate Agent's Acceptance

I hereby accept the designation as the alternate agent for purposes described in this document (alternate's signature) ..............

C. When My Spouse is My Agent (check if desired)

. . . If my spouse is my agent, I desire that person to remain as my agent even if we become legally separated or our marriage is dissolved.

D. Limitations on My Agent's Authority

I do not grant my agent the authority to consent on my behalf to the following: ......................................................

E. Preference as to Court-Appointed Guardian

In the event a court decides to appoint a guardian who will make decisions regarding my mental health treatment, I desire the following person to be appointed:

Name: ....................... Relationship: .................

Address: ........................................................

Day Telephone: .............. Evening Telephone: ............

The appointment of a guardian of my estate or my person or any other decision maker shall not give the guardian or decision maker the power to revoke, suspend, or terminate this directive or the powers of my agent, except as specifically required by law.

PART V. PREFERENCES OR INSTRUCTIONS ABOUT NOTIFICATION OF OTHERS, CARE OF PERSONAL AFFAIRS, AND CONSENTS TO RELEASE TREATMENT INFORMATION

A. Who Should Be Notified

I desire staff to notify the following individuals, in addition to my agent (if named) immediately when this directive becomes operative:

Name: ....................... Relationship: .................

Address: ........................................................

Day Telephone: .............. Evening Telephone: ............

B. Who Should Not be Permitted to Visit

If I have been admitted to a mental health treatment facility, I do not wish the following people to be permitted to visit me there:

Name: ....................... Relationship: .................

C. Consents to Obtain Previous Treatment Records

I consent to release treatment records from the following previous treatment providers upon request by treatment providers acting under this mental health advance directive:

Provider(s): ....................................................

D. Consents to Release Treatment Information

I consent to release relevant treatment information to the following individuals in addition to my agent and current treatment providers:

Name: ....................... Relationship: .................

Address: ........................................................

Day Telephone: .............. Evening Telephone: ............

E. Preferences or Instructions About Personal Affairs

I have the following preferences or instructions about my personal affairs (e.g., care of dependents, pets, household) if I am admitted to a mental health treatment facility: ......................................

PART VI. DURATION OF MY MENTAL HEALTH ADVANCE DIRECTIVE

. . . I want this mental health advance directive to remain valid and in effect for an indefinite period of time.

. . . I want this mental health advance directive to automatically expire within . . . years from the date it was created.

PART VII. SIGNATURE

By signing here, I indicate that I understand the purpose and effect of this document.

.................................................................

Signature Date

The directive above was signed and declared by the "Declarant," . . . . . . to be his or her mental health advance directive, in our presence who, at his or her request, have signed names below as witness. We declare that, at the time of the creation of this instrument, the Declarant is personally known to us, and, according to our best knowledge and belief, was a person with capacity at the time. We further declare that none of us is: (1) A person designated to make medical decisions on the person's behalf; (2) a mental health professional or other professional person directly involved with the provision of care to the person at the time the mental health advance directive is executed; (3) an owner, operator, or relative of an owner or operator of a health care facility or long-term care facility in which the person is a patient or resident; (4) a person who is related by blood, marriage, or adoption to the person; or (5) an incapacitated person.

Dated at . . . . . . . . . . . (county, state),

this . . . . . . day of . . . . . . of . . . ..

Witness 1 Witness 2

........................ .......................

Signature............... Signature

................... .......................

Printed Name....... Printed Name

................... .......................

Address............ Address

PART VIII. RECORD OF ADVANCE DIRECTIVE

I have given a copy of this mental health advance directive to the following persons: ..............................................

PART IX. REVOCATION OF MY ADVANCE DIRECTIVE

. . . I am revoking the following part(s) of this directive (specify):

.................................................................

. . . I am revoking all of this directive.

By signing here, I indicate that I understand the purpose and effect of my revocation.

.................................................................

Signature Date"

Sec. 14. RCW 11.94.010 and 1995 c 297 s 9 are each amended to read as follows:

(1) Whenever a principal designates another as his or her attorney in fact or agent, by a power of attorney in writing, and the writing contains the words "This power of attorney shall not be affected by disability of the principal," or "This power of attorney shall become effective upon the disability of the principal," or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's disability, the authority of the attorney in fact or agent is exercisable on behalf of the principal as provided notwithstanding later disability or incapacity of the principal at law or later uncertainty as to whether the principal is dead or alive. All acts done by the attorney in fact or agent pursuant to the power during any period of disability or incompetence or uncertainty as to whether the principal is dead or alive have the same effect and inure to the benefit of and bind the principal or the principal's guardian or heirs, devisees, and personal representative as if the principal were alive, competent, and not disabled. A principal may nominate, by a durable power of attorney, the guardian or limited guardian of his or her estate or person for consideration by the court if protective proceedings for the principal's person or estate are thereafter commenced. The court shall make its appointment in accordance with the principal's most recent nomination in a durable power of attorney except for good cause or disqualification. If a guardian thereafter is appointed for the principal, the attorney in fact or agent, during the continuance of the appointment, shall account to the guardian rather than the principal. The guardian has the same power the principal would have had if the principal were not disabled or incompetent, to revoke, suspend or terminate all or any part of the power of attorney or agency.

(2) Persons shall place reasonable reliance on any determination of disability or incompetence as provided in the instrument that specifies the time and the circumstances under which the power of attorney document becomes effective.

(3)(a) A principal may authorize his or her attorney-in-fact to provide informed consent for health care decisions on the principal's behalf. If a principal has created both a power of attorney and a directive, pursuant to chapter 71.-- RCW (sections 1 through 13 of this act), authorizing an agent to make mental health care decisions on the person's behalf, the directive or power of attorney most recently created shall be construed to contain the person's most recent mental health treatment preferences and instructions, unless provided otherwise in either document. An attorney-in-fact appointed under a mental health advance directive has the same right as the principal to receive and review the principal's medical records relating to mental health treatment. If the principal so states in the mental health advance directive, an attorney-in-fact may provide consent on behalf of the principal to voluntary admission to inpatient mental health treatment for a period not to exceed seventy-two hours.

(b) Unless he or she is the spouse, or adult child or brother or sister of the principal, none of the following persons may act as the attorney-in-fact for the principal or as an agent in a mental health advance directive: Any of the principal's physicians, the physicians' employees, or the owners, administrators, or employees of the health care facility or long-term care facility where the principal resides or receives care. Except as provided in subsection (a) of this section, this authorization is subject to the same limitations as those that apply to a guardian under RCW 11.92.043(5) (a) through (c).

Sec. 15. RCW 11.88.010 and 1991 c 289 s 1 are each amended to read as follows:

(1) The superior court of each county shall have power to appoint guardians for the persons and/or estates of incapacitated persons, and guardians for the estates of nonresidents of the state who have property in the county needing care and attention.

(a) For purposes of this chapter, a person may be deemed incapacitated as to person when the superior court determines the individual has a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety.

(b) For purposes of this chapter, a person may be deemed incapacitated as to the person's estate when the superior court determines the individual is at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs.

(c) A determination of incapacity is a legal not a medical decision, based upon a demonstration of management insufficiencies over time in the area of person or estate. Age, eccentricity, poverty, or medical diagnosis alone shall not be sufficient to justify a finding of incapacity.

(d) A person may also be determined incapacitated if he or she is under the age of majority as defined in RCW 26.28.010.

(e) For purposes of giving informed consent for health care pursuant to RCW 7.70.050 and 7.70.065, an "incompetent" person is any person who is (i) incompetent by reason of mental illness, developmental disability, senility, habitual drunkenness, excessive use of drugs, or other mental incapacity, of either managing his or her property or caring for himself or herself, or both, or (ii) incapacitated as defined in (a), (b), or (d) of this subsection.

(f) For purposes of the terms "incompetent," "disabled," or "not legally competent," as those terms are used in the Revised Code of Washington to apply to persons incapacitated under this chapter, those terms shall be interpreted to mean "incapacitated" persons for purposes of this chapter.

(2) The superior court for each county shall have power to appoint limited guardians for the persons and estates, or either thereof, of incapacitated persons, who by reason of their incapacity have need for protection and assistance, but who are capable of managing some of their personal and financial affairs. After considering all evidence presented as a result of such investigation, the court shall impose, by order, only such specific limitations and restrictions on an incapacitated person to be placed under a limited guardianship as the court finds necessary for such person's protection and assistance. A person shall not be presumed to be incapacitated nor shall a person lose any legal rights or suffer any legal disabilities as the result of being placed under a limited guardianship, except as to those rights and disabilities specifically set forth in the court order establishing such a limited guardianship. In addition, the court order shall state the period of time for which it shall be applicable.

(3) Venue for petitions for guardianship or limited guardianship shall lie in the county wherein the alleged incapacitated person is domiciled, or if such person resides in a facility supported in whole or in part by local, state, or federal funding sources, in either the county where the facility is located, the county of domicile prior to residence in the supported facility, or the county where a parent or spouse of the alleged incapacitated person is domiciled.

If the alleged incapacitated person's residency has changed within one year of the filing of the petition, any interested person may move for a change of venue for any proceedings seeking the appointment of a guardian or a limited guardian under this chapter to the county of the alleged incapacitated person's last place of residence of one year or more. The motion shall be granted when it appears to the court that such venue would be in the best interests of the alleged incapacitated person and would promote more complete consideration of all relevant matters.

(4) Under RCW 11.94.010 or chapter 71.-- (sections 1 through 13 of this act), a principal may nominate, by a durable power of attorney or the mental health advance directive, the guardian or limited guardian of his or her estate or person for consideration by the court if guardianship proceedings for the principal's person or estate are thereafter commenced. The court shall make its appointment in accordance with the principal's most recent nomination in a durable power of attorney or mental health advance directive except for good cause or disqualification.

(5) When a court imposes a full guardianship for an incapacitated person, the person shall be considered incompetent for purposes of rationally exercising the right to vote and shall lose the right to vote, unless the court specifically finds that the person is rationally capable of exercising the franchise. Imposition of a limited guardianship for an incapacitated person shall not result in the loss of the right to vote unless the court determines that the person is incompetent for purposes of rationally exercising the franchise.

Sec. 16. RCW 11.88.030 and 1996 c 249 s 8 are each amended to read as follows:

(1) Any person or entity may petition for the appointment of a qualified person, trust company, national bank, or nonprofit corporation authorized in RCW 11.88.020 as the guardian or limited guardian of an incapacitated person. No liability for filing a petition for guardianship or limited guardianship shall attach to a petitioner acting in good faith and upon reasonable basis. A petition for guardianship or limited guardianship shall state:

(a) The name, age, residence, and post office address of the alleged incapacitated person;

(b) The nature of the alleged incapacity in accordance with RCW 11.88.010;

(c) The approximate value and description of property, including any compensation, pension, insurance, or allowance, to which the alleged incapacitated person may be entitled;

(d) Whether there is, in any state, a guardian or limited guardian, or pending guardianship action for the person or estate of the alleged incapacitated person;

(e) The residence and post office address of the person whom petitioner asks to be appointed guardian or limited guardian;

(f) The names and addresses, and nature of the relationship, so far as known or can be reasonably ascertained, of the persons most closely related by blood or marriage to the alleged incapacitated person;

(g) The name and address of the person or facility having the care and custody of the alleged incapacitated person;

(h) The reason why the appointment of a guardian or limited guardian is sought and the interest of the petitioner in the appointment, and whether the appointment is sought as guardian or limited guardian of the person, the estate, or both;

(i) A description of any alternate arrangements previously made by the alleged incapacitated person, such as trusts, advanced directives for mental health care, or powers of attorney, including identifying any guardianship nominations contained in a power of attorney, and why a guardianship is nevertheless necessary;

(j) The nature and degree of the alleged incapacity and the specific areas of protection and assistance requested and the limitation of rights requested to be included in the court's order of appointment;

(k) The requested term of the limited guardianship to be included in the court's order of appointment;

(l) Whether the petitioner is proposing a specific individual to act as guardian ad litem and, if so, the individual's knowledge of or relationship to any of the parties, and why the individual is proposed.

(2)(a) The attorney general may petition for the appointment of a guardian or limited guardian in any case in which there is cause to believe that a guardianship is necessary and no private party is able and willing to petition.

(b) Prepayment of a filing fee shall not be required in any guardianship or limited guardianship brought by the attorney general. Payment of the filing fee shall be ordered from the estate of the incapacitated person at the hearing on the merits of the petition, unless in the judgment of the court, such payment would impose a hardship upon the incapacitated person, in which case the filing shall be waived.

(3) No filing fee shall be charged by the court for filing either a petition for guardianship or a petition for limited guardianship if the petition alleges that the alleged incapacitated person has total assets of a value of less than three thousand dollars.

(4)(a) Notice that a guardianship proceeding has been commenced shall be personally served upon the alleged incapacitated person and the guardian ad litem along with a copy of the petition for appointment of a guardian. Such notice shall be served not more than five court days after the petition has been filed.

(b) Notice under this subsection shall include a clear and easily readable statement of the legal rights of the alleged incapacitated person that could be restricted or transferred to a guardian by a guardianship order as well as the right to counsel of choice and to a jury trial on the issue of incapacity. Such notice shall be in substantially the following form and shall be in capital letters, double-spaced, and in a type size not smaller than ten-point type:

IMPORTANT NOTICE

PLEASE READ CAREFULLY

A PETITION TO HAVE A GUARDIAN APPOINTED FOR YOU HAS BEEN FILED IN THE . . . . . . COUNTY SUPERIOR COURT BY . . . . . . IF A GUARDIAN IS APPOINTED, YOU COULD LOSE ONE OR MORE OF THE FOLLOWING RIGHTS:

(1) TO MARRY OR DIVORCE;

(2) TO VOTE OR HOLD AN ELECTED OFFICE;

(3) TO ENTER INTO A CONTRACT OR MAKE OR REVOKE A WILL;

(4) TO APPOINT SOMEONE TO ACT ON YOUR BEHALF;

(5) TO SUE AND BE SUED OTHER THAN THROUGH A GUARDIAN;

(6) TO POSSESS A LICENSE TO DRIVE;

(7) TO BUY, SELL, OWN, MORTGAGE, OR LEASE PROPERTY;

(8) TO CONSENT TO OR REFUSE MEDICAL TREATMENT;

(9) TO DECIDE WHO SHALL PROVIDE CARE AND ASSISTANCE;

(10) TO MAKE DECISIONS REGARDING SOCIAL ASPECTS OF YOUR LIFE.

UNDER THE LAW, YOU HAVE CERTAIN RIGHTS.

YOU HAVE THE RIGHT TO BE REPRESENTED BY A LAWYER OF YOUR OWN CHOOSING. THE COURT WILL APPOINT A LAWYER TO REPRESENT YOU IF YOU ARE UNABLE TO PAY OR PAYMENT WOULD RESULT IN A SUBSTANTIAL HARDSHIP TO YOU.

YOU HAVE THE RIGHT TO ASK FOR A JURY TO DECIDE WHETHER OR NOT YOU NEED A GUARDIAN TO HELP YOU.

YOU HAVE THE RIGHT TO BE PRESENT IN COURT AND TESTIFY WHEN THE HEARING IS HELD TO DECIDE WHETHER OR NOT YOU NEED A GUARDIAN. IF A GUARDIAN AD LITEM IS APPOINTED, YOU HAVE THE RIGHT TO REQUEST THE COURT TO REPLACE THAT PERSON.

(5) All petitions filed under the provisions of this section shall be heard within sixty days unless an extension of time is requested by a party or the guardian ad litem within such sixty day period and granted for good cause shown. If an extension is granted, the court shall set a new hearing date.

NEW SECTION. Sec. 17. Nothing in this act creates a legal right or cause of action. Nothing in this act denies or alters any existing legal right or cause of action nor may it be relied upon to compel the establishment of any program or special entitlement.

NEW SECTION. Sec. 18. Sections 1 through 13 of this act constitute a new chapter in Title 71 RCW.

NEW SECTION. Sec. 19. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.