Guardianships

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.