Laura Nelson, Author at Samuels Yoelin Kantor LLP

New Guardianship Rules in Washington

April 19, 2022April 15, 2022 by Laura Nelson

I think we’ve all succumbed to the siren song of New Year’s Resolutions, right? Whether it’s losing a few pounds (guilty!), going to the gym, meditating, we all start the year with the best of intentions. Washington State is no different with the adoption of the Uniform Guardianship Act in January 2022, although unlike most of our personal resolutions, the new rules are likely to stick. “But wait,” you say, “Washington has completely overhauled its guardianship rules?” The short answer is “yes.” But Never Fear, the Washington statutes have some familiar components with some key differences, discussed below.

Jargon. The updated Washington statutes change how we refer to the parties in the proceeding, and adopted the use of terms that mirror those in Oregon. Most importantly, Washington did away with the distinction of Guardian of the Person and Guardian of the Estate. Now, you have guardianship, dealing with personal rights of the Adult, and you have conservatorship, dealing with the financial/contractual rights of the Adult. Where you formerly called a Respondent an “incapacitated person” or “alleged incapacitated person,” these folks will be referred to as “Respondent” or “Adult” (See RCW 11.130 generally). Upon petitioning for appointment of guardian or conservator for an adult, a court visitor will be appointed (RCW 11.130.280).

Representation. Respondents have the right to be represented by willing counsel (RCW 11.130.285 and RCW 11.130.385). If the Respondent does not have funds to pay a lawyer those fees can be paid by the County.

Emergency Relief. Washington now allows petitioners emergency relief for Adults who may require assistance before or during the pendency of a petition for guardianship and/or conservatorship. (See RCW 11.130.225 and RCW 11.130.320). Similarly, RCW 11.130.580 allows “other” protective arrangements, which ostensibly will be for lesser restrictive alternatives to the guardianship or conservatorship but provide protection for a vulnerable adult.

Report & Accounting. Annual reporting and accounting requirements remain relatively the same. For example, guardians are required to report annually, and there are state/county wide forms for guardians to fill out with respect to the Adult. Conservators are likewise required to account for their activities. Washington judges have the authority to expand the accounting period from one year to three years in certain circumstances.

Notice. Washington expanded the parties who are entitled to notice of the Petition under RCW 11.130.275 (guardianship) and RCW 11.130.370 (conservatorship). Service requirements have also changed to ensure that the Respondent, Court Visitor, and interested parties receive notice. After appointment of Guardian and Conservator, the fiduciary has expanded notice requirements to the Respondent and interested parties: post-appointment, upon delegation of duties, and for other matters concerning the Adult. The prudent practitioner will very carefully consider the provisions of RCW 11.130 relating to the duties of Guardian and Conservator or consult with experienced counsel to properly advise their client of their duties under the statute.

Forms. Model forms have been included in the statute in RCW 11.130.640– 665, which will supplement each county’s model forms. Practitioners should consult each county’s local rules and websites to confirm whether there are preferred local forms.

Court Visitor. Washington requires the appointment of a court visitor upon petition for appointment of a guardian or a conservator for an Adult (RCW 11.130.280 and RCW 11.130.380), or upon the court’s own motion. The powers and duties are outlined in RCW 11.130.280 and RCW 11.130.380

Training. While training for fiduciaries is not a new requirement, it is worth noting that Washington State provides a free online training for all proposed guardian and conservators. This training is required pre-appointment, unless good cause is shown to waive the requirement.

Washington’s shiny new statutes attempt to do a better job at protecting the liberty and autonomy of all persons, helping Adults exercise their rights to the maximum extent possible—consistent with their personal capacity. The New Year brings exciting changes in Washington law which attempt to better promote self-determination and independence while providing Adults the support and care, tailored to their needs.

Lessons From My COVID Year (and a half)

September 28, 2021 by Laura Nelson

“These are unprecedented times” – a phrase I think we’re all sick of hearing. As the unprecedented times become more precedented times, I’ve had time to reflect on some of the silver linings of this COVID cloud. As we weather the storm together – apart, I’ve had the opportunity to shelter in place and work from home with my sister and her daughters, ages 3 and 1. In March 2020, my co-workers were highly intelligent, skilled and trained professionals. In March 2021, my co-workers were still highly intelligent, learning social and interpersonal skills, but not 100% toilet trained. My new co-workers, who are still mastering the art of the English language, the porcelain throne, and dressing for anything other than deranged princess games, are teaching me skills that hopefully will outlast these “unprecedented times.”

Naps Are Good, but Don’t Sleep On The Job

As a childless auntie observing this new toddler world while working from home, I have learned a lot from observing my nieces. When the tummies are full, the diapers are changed, and all other needs have been met, if your toddler is still fussy, you might try a nap. Naptime is crucial for the toddler (and the weary caretaker), as it usually resets the attitude button, and gives much needed respite to the caretaker. Put your toddler down for a nap too early, and it’s a battle. Put your toddler down for a nap too late, and you risk cranky attitudes and a late bedtime. If my sister has taught me anything about toddlers, naptime is magic and timing the nap is as precise a science as looking into a crystal ball.

So, what – I’m telling everyone to take a daily nap? Hmmmm… maybe! But precisely, professionals who work from home need to rest and establish good boundaries with work, especially in this work from home era. Like my sister timing naptime with the precision of a cardiac surgeon, professionals need to consistently check in with themselves, and take the time to rest and refresh when we need it. The work and home lines have blurred, and it’s harder than ever to turn off our computers, phones, etc. since the work is at home, staring us in the face. A good way to avoid burnout is taking breaks when we need it, whether it’s a midday nap (when appropriate), or a quick walk around the block.

All Work And No Play Makes Jack A Dull Boy

Before working from home, I had a highly regimented schedule, which included 10am snack, 12pm lunch, 3pm coffee snack, and dinner around 5pm. Rarely did that schedule include any “play” time, although I’d sneak away from Big Pink to shop on occasion. Now, it’s not uncommon for me to hear my toddler co-workers chant (at any time of day) “fashion show, fashion show, fashion show at lunch!” It is then expected that all occupants of the house drop what they’re doing to either observe or participate in said fashion show. My new co-workers also demand to be chased or for a rousing game of hide and seek at the drop of a hat. Play time is any time. Since engaging in brief bursts of play throughout my workday, I’ve learned that my favorite roles include “lava monster”, wicked stepmother from almost any Disney movie (also, should we talk about how stepparents are demonized?!?), and Miss Hannigan.

Taking breaks for play – especially in a highly demanding and sometimes emotionally draining field – refreshes my ability to deal with difficult matters. They allow my brain a break and the ability to disconnect personally from the problem at hand. When I come back, I am sometimes able to see the problem from a different angle or perspective. Play time can also be used to get things done – the wicked stepmother and Miss Hannigan are very effective in getting toys picked up or last bites of dinner eaten. For me, and a lot of lawyers, entering time can be a drudge, but if it’s done with a crazy hat ala fashion show at lunch, or while giving directions to your “orphans” who are also cleaning their toys, it can be more bearable.

If At First You Don’t Succeed …

Toddlers are relentless. When they want something, they want it NOW. I have never had a boss more demanding than my new co-workers. I am amazed daily at the simplicity of the tasks that they are charged with learning, like letters, dressing, and yes, toilet training, that they do not master, yet they try, try again. They embrace the learning and the challenges, with encouragement from parents, teachers, and other caretakers. As a lawyer, I have learned that we do not wake up one morning, Elle Woods style, with all the abilities, knowledge, skill, and training that we need to be excellent lawyers – *sigh* that’s why they call it the practice of law. I suspect it is this way in every field – we are born with innate talents, but the talents must be carefully honed and our skill crafted to make us great in our chosen profession. Surrounding myself with family, friends, and excellent mentorship has helped me, as a baby lawyer, try, try again, even when I wanted to throw a tantrum and quit.

My new co-workers will never replace my old co-workers, but I have learned some very valuable lessons from my sweet, funny, frustrating, and adorable nieces, who have helped shepherd me through these “unprecedented times.”

Modification of Guardianship or Conservatorship: Lessons From Britney Spears

July 1, 2021 by Laura Nelson

The media has been all abuzz in recent months, weeks, and years about Britney Spears’ conservatorship. We all remember the fateful photo from 2007, showing Spears gleefully buzzing her signature long, blond locks. Shortly after, her father was appointed conservator for her. Fans have long suspected that Spears is dissatisfied with the structures of her conservatorship and the decisions made by her father and conservator Jamie Spears. For an internet deep dive on the topic, follow #FreeBritney. Spears has historically not spoken out against the conservatorship publicly – until now. Spears spoke to an LA County, California court for almost half an hour on June 23, 2021, airing grievances with her conservatorship, and particularly her conservator. For more information on the explosive testimony, follow this link: https://people.com/music/britney-spears-will-continue-fighting-for-future-after-shocking-court-testimony-cover-story/.

The Judge denied the request to modify the conservatorship on the basis that a formal petition had not been filed yet.

Luckily, for protected people and their families in Oregon and Washington, the courts have powers to address legitimate complaints of protected people who wish to have their guardianships or conservatorships modified or terminated – even when a formal petition has not been filed. By way of background, a guardian is someone who is appointed by a court to protect and care for the health and well-being of another person. A conservator is someone who is appointed by a court to protect and care for the financial resources of another person.

In Oregon, the court has a wide latitude to appoint an attorney for a protected person – someone who can advocate for the rights of the protected person. Oregon statutes recognize the very grave nature of removing rights from a person, and caution courts to make orders only as restrictive as necessary. ORS 125.300(1), provides . . . “A guardianship for an adult person must be designed to encourage the development of maximum self-reliance and independence of the protected person and may be ordered only to the extent necessitated by the person’s actual mental and physical limitations.” The attorney for the protected person can help advocate for less restrictive supports and alternatives to the guardianship.

In Washington, the court also has wide latitude to appoint an attorney for a protected person. (RCW 11.88.045). The attorney for a protected person advocates for the protected person, and is separate and distinct from a guardian ad litem. The court may also appoint a guardian ad litem to investigate the complaints against the guardian (or conservator), or if it finds good cause. Washington statutes also recognize the importance of personal liberty interests and caution courts to make orders only as restrictive as necessary. “It is the intent of the legislature to protect the liberty and autonomy of all people of this state, and to enable them to exercise their rights under the law to the maximum extent, consistent with the capacity of each person. The legislature recognizes that people with incapacities have unique abilities and needs, and that some people with incapacities cannot exercise their rights or provide for their basic needs without the help of a guardian. However, their liberty and autonomy should be restricted through the guardianship process only to the minimum extent necessary to adequately provide for their own health or safety, or to adequately manage their financial affairs.” RCW 11.88.005.

Those who are subject to a guardianship or conservatorship who would like their rights restored should seek the advice of an attorney to understand better whether modification or termination is right for them.

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