BILL REQ. #:  S-3928.1 



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SENATE BILL 6488
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State of Washington62nd Legislature2012 Regular Session

By Senator Harper

Read first time 01/26/12.   Referred to Committee on Human Services & Corrections.



     AN ACT Relating to certain reporting and training requirements for guardians; and amending RCW 11.88.127, 11.92.040, and 11.92.043.

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

Sec. 1   RCW 11.88.127 and 2011 c 329 s 6 are each amended to read as follows:
     (1) A guardian or limited guardian may not act on behalf of the incapacitated person without valid letters of guardianship. Upon appointment and fulfilling all legal requirements to serve, as set forth in the court's order, the clerk shall issue letters of guardianship to a guardian or limited guardian appointed by the court. All letters of guardianship must be in the following form, or a substantially similar form:


IN THE SUPERIOR COURT OF THE
STATE OF WASHINGTON IN AND FOR THE
COUNTY OF . . . . . . . . .
IN THE MATTER OF THE GUARDIANSHIP OF
. . . . . . . . . . . . . . . . . . 		Guardianship Cause No. . . . . . . . .
Incapacitated PersonLETTERS OF GUARDIANSHIP OR LIMITED GUARDIANSHIP
Date letters expire . . . . . . . . . . . .


THESE LETTERS OF GUARDIANSHIP PROVIDE OFFICIAL VERIFICATION OF THE FOLLOWING:
 
On the . . . . . . . . . day of . . . . . . . ., 20 . . . . the Court appointed . . . . . . . . . . .to serve as:
 
☐ Guardian of the Person          ☐ Full          ☐ Limited
☐ Guardian of the Estate          ☐ Full          ☐ Limited
 
for . . . . . . . . . . . ., the incapacitated person, in the above referenced matter.
 
The Guardian has fulfilled all legal requirements to serve, including, but not limited to: Taking and filing the oath; filing any bond consistent with the court's order; filing any blocked account agreement consistent with the court's order; and appointing a resident agent for a nonresident guardian.
 
The Court, having found the Guardian duly qualified, now makes it known . . . . . . . . . is authorized as the Guardian for . . . . . . . . . . . . . . designated in the Court's order as referenced above.
 
The next filing and reporting deadline in this matter is on the . . . day of . . . . . . ., . . . . . ..
THESE LETTERS ARE NO LONGER VALID ON . . . . . . . . . .
These letters can only be renewed by a new court order. If the court grants an extension, new letters will be issued.
This matter is before the Honorable . . . . . . . . of Superior Court, the seal of the Court being affixed
this . . . . of . . . . . . . ..
 
State of Washington) 
) ss.
County of . . . . . . . . . )
 
I, . . . . . . . ., Clerk of the Superior Court of said County and State, certify that this document represents true and correct Letters of Guardianship in the above entitled case, entered upon the record on this . . . . . . . day of . . . . . ., . . . ..
 
These Letters remain in full force and effect until the date of expiration set forth above.
The seal of Superior Court has been affixed and witnessed by my hand this . . . . . . . day of . . . . . . . . ., . . . ..
 
 
       . . . . . . . . . ., Clerk of Superior Court
 
       By. . . . . . . . ., Deputy
 
       . . . . . . . . . . . . . . . . . . . .
       (Signature of Deputy)


     (2) The court shall order the clerk to issue letters of guardianship that are valid for a period of up to ((five)) six years from the anniversary date of the appointment. When determining the time period for which the letters will be valid, the court must consider: The length of time the guardian has been serving the incapacitated person; whether the guardian has timely filed all required reports with the court; whether the guardian is monitored by other state or local agencies; and whether there have been any allegations of abuse, neglect, or a breach of fiduciary duty against the guardian.

Sec. 2   RCW 11.92.040 and 2011 c 329 s 9 are each amended to read as follows:
     (1) It ((shall be)) is the duty of the guardian or limited guardian of an estate:
     (((1))) (a) To file within three months after the guardian's appointment a verified inventory of all the property of the incapacitated person which comes into the guardian's possession or knowledge, including a statement of all encumbrances, liens, and other secured charges on any item;
     (((2))) (b) To file annually, within ninety days after the anniversary date of the guardian's or limited guardian's appointment, and also within ninety days after termination of the appointment, unless the court for good cause orders a different deadline to file following termination, a written verified account of the administration for court approval, which account ((shall)) must contain at least the following information:
     (((a))) (i) Identification of property of the guardianship estate as of the date of the last account or, in the case of the initial account, as of the date of inventory;
     (((b))) (ii) Identification of all additional property received into the guardianship, including income by source;
     (((c))) (iii) Identification of all expenditures made during the account period by major categories;
     (((d))) (iv) Any adjustments to the guardianship estate required to establish its present fair market value, including gains or losses on sale or other disposition and any mortgages, deeds of trust or other encumbrances against the guardianship estate; and
     (((e))) (v) Identification of all property held in the guardianship estate as of the date of account, the assessed value of any real property and the guardian's estimate of the present fair market values of other property (including the basis on which such estimate is made), and the total net fair market value of the guardianship estate. In addition, immediately following such statement of present fair market value, the account ((shall)) must set forth a statement of current amount of the guardian's bond and any other court-ordered protection for the security of the guardianship assets((;)).
     (((3))) (2)(a) The court ((in its discretion)) may allow ((reports)) guardians or limited guardians of the estate to report at review hearings at intervals of up to ((thirty-six months)):
     (i) Three years for estates with assets (exclusive of real property) having a value of not more than twice the homestead exemption; and
     (ii) Six years for estates with assets having a value of not more than three thousand dollars.
     (b) Notwithstanding contrary provisions of this section, the guardian or limited guardian of an estate need not file an annual report with the court if the funds of the guardianship are held for the benefit of a minor in a blocked account unless the guardian requests a withdrawal from such account, in which case the guardian shall provide a written verified account of the administration of the guardianship estate along with the guardian's petition for the withdrawal. The guardian or limited guardian shall report any substantial change in income or assets of the guardianship estate within thirty days of the occurrence of the change. A hearing ((shall)) must be scheduled for court review and determination of provision for increased bond or other provision in accordance with RCW 11.88.100((;)).
     (((4))) (3) All court orders approving accounts or reports filed by a guardian or limited guardian must contain a guardianship summary placed directly below the case caption or on a separate cover page in the following form, or a substantially similar form, containing the following information:


GUARDIANSHIP SUMMARY


Date Guardian Appointed: . . . . . . . . . . . .
Due Date for Report and Accounting:
. . . . . . . . . . . .
Date of Next Review: . . . . . . . . . . . .
Letters Expire On: . . . . . . . . . . . .
Bond Amount:$ . . . . . . . . . . . .
Restricted Account: Agreements Required:
. . . . . . . . . . . .



Incapacitated Person (IP)Guardian of: [ ] Estate [ ] Person
Name:Name:
Address:Address:
Phone:Phone:
Facsimile:Facsimile:


Standby GuardianAddressRelation to IP
Interested PartiesAddressRelation to IP


     (((5))) (4) It is the duty of the guardian or limited guardian of an estate:
     (a) To protect and preserve the guardianship estate, to apply it as provided in this chapter, to account for it faithfully, to perform all of the duties required by law, and at the termination of the guardianship or limited guardianship, to deliver the assets of the incapacitated person to the persons entitled thereto. Except as provided to the contrary herein, the court may authorize a guardian or limited guardian to do anything that a trustee can do under the provisions of RCW 11.98.070 for a period not exceeding one year from the date of the order or for a period corresponding to the interval in which the guardian's or limited guardian's report is required to be filed by the court pursuant to subsection (((2))) (1)(b) of this section, whichever period is longer;
     (((6))) (b) To invest and reinvest the property of the incapacitated person in accordance with the rules applicable to investment of trust estates by trustees as provided in chapter 11.100 RCW, except that:
     (((a))) (i) No investments ((shall)) may be made without prior order of the court in any property other than unconditional interest bearing obligations of this state or of the United States and in obligations the interest and principal of which are unconditionally guaranteed by the United States, and in share accounts or deposits which are insured by an agency of the United States government. Such prior order of the court may authorize specific investments, or, in the discretion of the court, may authorize the guardian or limited guardian to invest and reinvest as provided in chapter 11.100 RCW without further order of the court;
     (((b))) (ii) If it is for the best interests of the incapacitated person that a specific property be used by the incapacitated person rather than sold and the proceeds invested, the court may so order;
     (((7))) (c) To apply to the court no later than the filing of the inventory for an order authorizing disbursements on behalf of the incapacitated person. However, the guardian or limited guardian of the estate, or the person, department, bureau, agency, or charitable organization having the care and custody of an incapacitated person, may apply to the court for an order directing the guardian or limited guardian of the estate to pay to the person, department, bureau, agency, or charitable organization having the care and custody of an incapacitated person, or if the guardian or limited guardian of the estate has the care and custody of the incapacitated person, directing the guardian or limited guardian of the estate to apply an amount weekly, monthly, quarterly, semi-annually, or annually, as the court may direct, to be expended in the care, maintenance, and education of the incapacitated person and of his or her dependents. In proper cases, the court may order payment of amounts directly to the incapacitated person for his or her maintenance or incidental expenses. The amounts authorized under this section may be decreased or increased from time to time by direction of the court. If payments are made to another under an order of the court, the guardian or limited guardian of the estate is not bound to see to the application thereof;
     (((8))) (d) To provide evidence of the guardian or limited guardian's successful completion of any standardized training video or web cast for guardians or limited guardians made available by the administrative office of the courts and the superior court when the guardian or limited guardian: (((a))) (i) Was appointed prior to July 22, 2011; (((b))) (ii) is not a certified professional guardian or financial institution authorized under RCW 11.88.020; and (((c))) (iii) has not previously completed the requirements of RCW 11.88.020(3). The training video or web cast must be provided at no cost to the guardian or limited guardian. The superior court may, upon (i) petition by the guardian or limited guardian; or (ii) any other method as provided by local court rule: (A) For good cause, waive this requirement for guardians appointed prior to July 22, 2011. Good cause shall require evidence that the guardian already possesses the requisite knowledge to serve as a guardian without completing the training. When determining whether there is good cause to waive the training requirement, the court shall consider, among other facts, the length of time the guardian has been serving the incapacitated person; whether the guardian has timely filed all required reports with the court; whether the guardian is monitored by other state or local agencies; and whether there have been any allegations of abuse, neglect, or a breach of fiduciary duty against the guardian; or (B) extend the time period for completion of the training requirement for ninety days; and
     (((9))) (e) To provide evidence of the guardian or limited guardian's successful completion of any additional or updated training video or web cast offered by the administrative office of the courts and the superior court as is required at the discretion of the superior court unless the guardian or limited guardian is a certified professional guardian or financial institution authorized under RCW 11.88.020. The training video or web cast must be provided at no cost to the guardian or limited guardian.

Sec. 3   RCW 11.92.043 and 2011 c 329 s 3 are each amended to read as follows:
     (1) It ((shall be)) is the duty of the guardian or limited guardian of the person:
     (((1))) (a) To file within three months after appointment a personal care plan for the incapacitated person which ((shall)) must include (((a))):
     (i) An assessment of the incapacitated person's physical, mental, and emotional needs and of such person's ability to perform or assist in activities of daily living((,)); and
     (((b))) (ii) The guardian's specific plan for meeting the identified and emerging personal care needs of the incapacitated person.
     (((2))) (b) To file annually or, where a guardian of the estate has been appointed, at the time an account is required to be filed under RCW 11.92.040, a report on the status of the incapacitated person, which ((shall)) must include:
     (((a))) (i) The address and name of the incapacitated person and all residential changes during the period;
     (((b))) (ii) The services or programs which the incapacitated person receives;
     (((c))) (iii) The medical status of the incapacitated person;
     (((d))) (iv) The mental status of the incapacitated person;
     (((e))) (v) Changes in the functional abilities of the incapacitated person;
     (((f))) (vi) Activities of the guardian for the period;
     (((g))) (vii) Any recommended changes in the scope of the authority of the guardian;
     (((h))) (viii) The identity of any professionals who have assisted the incapacitated person during the period;
     (((i)(i))) (ix)(A) Evidence of the guardian or limited guardian's successful completion of any standardized training video or web cast for guardians or limited guardians made available by the administrative office of the courts and the superior court when the guardian or limited guardian: (((A))) Was appointed prior to July 22, 2011; (((B))) is not a certified professional guardian or financial institution authorized under RCW 11.88.020; and (((C))) has not previously completed the requirements of RCW 11.88.020(3). The training video or web cast must be provided at no cost to the guardian or limited guardian.
     (((ii))) (B) The superior court may, upon (((A))) petition by the guardian or limited guardian; or (((B))) any other method as provided by local court rule:
     (I) For good cause, waive this requirement for guardians appointed prior to July 22, 2011. Good cause shall require evidence that the guardian already possesses the requisite knowledge to serve as a guardian without completing the training. When determining whether there is good cause to waive the training requirement, the court shall consider, among other facts, the length of time the guardian has been serving the incapacitated person; whether the guardian has timely filed all required reports with the court; whether the guardian is monitored by other state or local agencies; and whether there have been any allegations of abuse, neglect, or a breach of fiduciary duty against the guardian; or
     (II) Extend the time period for completion of the training requirement for ninety days; and
     (((j))) (x) Evidence of the guardian or limited guardian's successful completion of any additional or updated training video or web cast offered by the administrative office of the courts and the superior court as is required at the discretion of the superior court unless the guardian or limited guardian is a certified professional guardian or financial institution authorized under RCW 11.88.020. The training video or web cast must be provided at no cost to the guardian or limited guardian.
     (2) The court may allow guardians or limited guardians of the person with corresponding estates having a value of not more than three thousand dollars or guardians or limited guardians of the person where there is no guardianship of the estate to report at review hearings at intervals of up to six years if:
     (a) The guardian or limited guardian files a declaration in lieu of a report not more frequently than every three years stating there is no substantial change of circumstances since the court's most recent review hearing; and
     (b) Attaches documentation of the court's most recent review hearing to the declaration.
     (3) To report to the court within thirty days any substantial change in the incapacitated person's condition, or any changes in residence of the incapacitated person.
     (4) Consistent with the powers granted by the court, to care for and maintain the incapacitated person in the setting least restrictive to the incapacitated person's freedom and appropriate to the incapacitated person's personal care needs, assert the incapacitated person's rights and best interests, and if the incapacitated person is a minor or where otherwise appropriate, to see that the incapacitated person receives appropriate training and education and that the incapacitated person has the opportunity to learn a trade, occupation, or profession.
     (5) Consistent with RCW 7.70.065, to provide timely, informed consent for health care of the incapacitated person, except in the case of a limited guardian where such power is not expressly provided for in the order of appointment or subsequent modifying order as provided in RCW 11.88.125 as now or hereafter amended, the standby guardian or standby limited guardian may provide timely, informed consent to necessary medical procedures if the guardian or limited guardian cannot be located within four hours after the need for such consent arises. No guardian, limited guardian, or standby guardian may involuntarily commit for mental health treatment, observation, or evaluation an alleged incapacitated person who is unable or unwilling to give informed consent to such commitment unless the procedures for involuntary commitment set forth in chapter 71.05 or 72.23 RCW are followed. Nothing in this section ((shall)) may be construed to allow a guardian, limited guardian, or standby guardian to consent to:
     (a) Therapy or other procedure which induces convulsion;
     (b) Surgery solely for the purpose of psychosurgery;
     (c) Other psychiatric or mental health procedures that restrict physical freedom of movement, or the rights set forth in RCW 71.05.217.
     A guardian, limited guardian, or standby guardian who believes these procedures are necessary for the proper care and maintenance of the incapacitated person shall petition the court for an order unless the court has previously approved the procedure within the past thirty days. The court may order the procedure only after an attorney is appointed in accordance with RCW 11.88.045 if no attorney has previously appeared, notice is given, and a hearing is held in accordance with RCW 11.88.040.

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