AN
ACT Relating to medical reports in guardianship proceedings by advanced
registered nurse practitioners; and amending RCW 11.88.045.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
11.88.045 and 1996 c 249 s 9 are each amended to read as follows:
(1)(a)
Alleged incapacitated individuals shall have the right to be represented by
willing counsel of their choosing at any stage in guardianship proceedings.
The court shall provide counsel to represent any alleged incapacitated person
at public expense when either: (i) The individual is unable to afford counsel,
or (ii) the expense of counsel would result in substantial hardship to the
individual, or (iii) the individual does not have practical access to funds
with which to pay counsel. If the individual can afford counsel but lacks
practical access to funds, the court shall provide counsel and may impose a
reimbursement requirement as part of a final order. When, in the opinion of
the court, the rights and interests of an alleged or adjudicated incapacitated
person cannot otherwise be adequately protected and represented, the court on
its own motion shall appoint an attorney at any time to represent such person.
Counsel shall be provided as soon as practicable after a petition is filed and
long enough before any final hearing to allow adequate time for consultation
and preparation. Absent a convincing showing in the record to the contrary, a
period of less than three weeks shall be presumed by a reviewing court to be
inadequate time for consultation and preparation.
(b)
Counsel for an alleged incapacitated individual shall act as an advocate for
the client and shall not substitute counsel's own judgment for that of the
client on the subject of what may be in the client's best interests. Counsel's
role shall be distinct from that of the guardian ad litem, who is expected to
promote the best interest of the alleged incapacitated individual, rather than
the alleged incapacitated individual's expressed preferences.
(c)
If an alleged incapacitated person is represented by counsel and does not
communicate with counsel, counsel may ask the court for leave to withdraw for
that reason. If satisfied, after affording the alleged incapacitated person an
opportunity for a hearing, that the request is justified, the court may grant
the request and allow the case to proceed with the alleged incapacitated person
unrepresented.
(2)
During the pendency of any guardianship, any attorney purporting to represent a
person alleged or adjudicated to be incapacitated shall petition to be
appointed to represent the incapacitated or alleged incapacitated person. Fees
for representation described in this section shall be subject to approval by
the court pursuant to the provisions of RCW 11.92.180.
(3)
The alleged incapacitated person is further entitled to testify and present
evidence and, upon request, entitled to a jury trial on the issues of his or
her alleged incapacity. The standard of proof to be applied in a contested
case, whether before a jury or the court, shall be that of clear, cogent, and
convincing evidence.
(4)
In all proceedings for appointment of a guardian or limited guardian, the court
must be presented with a written report from a physician licensed to practice
under chapter 18.71 or 18.57 RCW ((or licensed or certified)),
psychologist licensed under chapter 18.83 RCW, or advanced registered nurse
practitioner licensed under chapter 18.79 RCW, selected by the guardian ad
litem. If the alleged incapacitated person opposes the health care
professional selected by the guardian ad litem to prepare the medical report,
then the guardian ad litem shall use the health care professional selected by
the alleged incapacitated person. The guardian ad litem may also obtain a
supplemental examination. The physician ((or)), psychologist,
or advanced registered nurse practitioner shall have personally examined
and interviewed the alleged incapacitated person within thirty days of
preparation of the report to the court and shall have expertise in the type of
disorder or incapacity the alleged incapacitated person is believed to have.
The report shall contain the following information and shall be set forth in
substantially the following format:
(a)
The name and address of the examining physician ((or)),
psychologist, or advanced registered nurse practitioner;
(b)
The education and experience of the physician ((or)),
psychologist, or advanced registered nurse practitioner pertinent to the
case;
(c)
The dates of examinations of the alleged incapacitated person;
(d)
A summary of the relevant medical, functional, neurological, ((psychological,
or psychiatric)) or mental health history of the alleged
incapacitated person as known to the examining physician ((or)),
psychologist, or advanced registered nurse practitioner;
(e)
The findings of the examining physician ((or)), psychologist,
or advanced registered nurse practitioner as to the condition of the
alleged incapacitated person;
(f)
Current medications;
(g)
The effect of current medications on the alleged incapacitated person's ability
to understand or participate in guardianship proceedings;
(h)
Opinions on the specific assistance the alleged incapacitated person needs;
(i)
Identification of persons with whom the physician ((or)),
psychologist, or advanced registered nurse practitioner has met or
spoken regarding the alleged incapacitated person.
The
court shall not enter an order appointing a guardian or limited guardian until
a medical or ((psychological)) mental status report meeting the
above requirements is filed.
The
requirement of filing a medical report is waived if the basis of the
guardianship is minority.
(5)
During the pendency of an action to establish a guardianship, a petitioner or
any person may move for temporary relief under chapter 7.40 RCW, to protect the
alleged incapacitated person from abuse, neglect, abandonment, or exploitation,
as those terms are defined in RCW 74.34.020, or to address any other emergency
needs of the alleged incapacitated person. Any alternative arrangement
executed before filing the petition for guardianship shall remain effective
unless the court grants the relief requested under chapter 7.40 RCW, or unless,
following notice and a hearing at which all parties directly affected by the
arrangement are present, the court finds that the alternative arrangement
should not remain effective.
