New Guardianship Rules in Washington

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.

Guardians & COVID-19: Facts You Should Know

The National Guardianship Association, National Center for State Courts, and ABA Commission on Law and Aging created a helpful “FAQs for Guardians about the COVID-19 Pandemic”.

Things are shifting swiftly, from state to state or facility to facility, so this information about access or contact with vulnerable adults and access with the courts will provide some guidance.

Victoria Blachly: SYK Attorney

Victoria Blachly is a partner at SYK, and an experienced fiduciary litigator that works with many elderly clients, cases and causes. She is also a proud Board Member for the Oregon Alzheimer’s Association Chapter.

Samuels Yoelin Kantor Seminar Series

COMPLIMENTARY SEMINAR SERIES

Samuels Yoelin Kantor LLP’s seminar series helps keep our clients and colleagues informed on recent developments and industry best practices. The seminars typically take place in our beautiful, state-of-the-art conference room on the 38th floor of the US Bancorp Tower. Seminars are complimentary. Participants qualify for (1) Continuing Professional Education (CPE) credit. To register, please use the links below or call us at 503-226-2966. Seating is limited, so be sure to contact us soon!


LITIGATING CONTESTED GUARDIANSHIPS

Thursday, March 21, 2013
7:30 – 9:00 A.M.
at Samuels Yoelin Kantor LLP offices
Light refreshments will be served

Presented by Victoria Blachly and Denise Gorrell

Guardianships are designed to protect those that cannot protect themselves. Two of our experienced fiduciary litigators, Victoria Blachly and Denise Gorrell, will discuss how trial attorneys balance the need to protect legal and civil rights with the need to protect impaired persons from harm. If you work with elderly clients or have aging family members, then this seminar will provide valuable information about evaluating potential guardianships, and how a fiduciary litigator prepares for a contested guardianship hearing. Learn about ideas for practical resolutions and the complexities that can develop when mental health and family conflict clash in the courtroom.
 

Victoria Blachly’s litigation experience focuses on fiduciary litigation for individual trustees, corporate trustees, beneficiaries, and personal representatives, including trust and estate litigation, will contests, trust disputes, undue influence, capacity cases, claims of fiduciary breach, financial elder abuse cases, petitioning for court instructions, and contested guardianship and conservatorship cases. Denise Gorrell focuses on real property and commercial law, as well fiduciary litigation. She frequently represents clients on real estate disputes, business dissolution, and trust contests.

To register for this seminar, contact events@samuelslaw.com or call us at 503-226-2966.

Samuels Yoelin Kantor Seminar Series

COMPLIMENTARY SEMINAR SERIES

Samuels Yoelin Kantor LLP’s seminar series helps keep our clients and colleagues informed on recent developments and industry best practices. The seminars typically take place in our beautiful, state-of-the-art conference room on the 38th floor of the US Bancorp Tower. Seminars are complimentary. Participants qualify for (1) Continuing Professional Education (CPE) credit. To register, please use the links below or call us at 503-226-2966. Seating is limited, so be sure to contact us soon!


PLANNING FOR TAX LAW CHANGES FOR 2013 AND BEYOND

Thursday, March 7, 2013
7:30 – 9:00 A.M.
at Samuels Yoelin Kantor LLP offices
Light refreshments will be served


Presented by Glen Goland and Valerie Sasaki

Congress changed estate and income tax calculations dramatically when they passed the American Taxpayer Relief Act on December 33, 2012. The new legislation has given us some stability, as the new rates and tables are about as permanent as things get when dealing with our Congress. We will talk about these changes and discuss the impact the new tax structure has on the families and businesses that we advise.

Glen Goland utilizes his years of experience in the financial and legal sectors to create estate plans that work for his clients and efficiently administer trusts and estates. Valerie Sasaki specializes in jurisdictional tax consulting, working closely with Fortune 50 companies involved in audits before the Oregon or Washington Departments of Revenue.

To register for this seminar, contact events@samuelslaw.com or call us at 503-226-2966.


LITIGATING CONTESTED GUARDIANSHIPS

Thursday, March 21, 2013
7:30 – 9:00 A.M.
at Samuels Yoelin Kantor LLP offices
Light refreshments will be served

 

Presented by Victoria Blachly and Denise Gorrell

Guardianships are designed to protect those that cannot protect themselves. Two of our experienced fiduciary litigators, Victoria Blachly and Denise Gorrell, will discuss how trial attorneys balance the need to protect legal and civil rights with the need to protect impaired persons from harm. If you work with elderly clients or have aging family members, then this seminar will provide valuable information about evaluating potential guardianships, and how a fiduciary litigator prepares for a contested guardianship hearing. Learn about ideas for practical resolutions and the complexities that can develop when mental health and family conflict clash in the courtroom.
 

Victoria Blachly’s litigation experience focuses on fiduciary litigation for individual trustees, corporate trustees, beneficiaries, and personal representatives, including trust and estate litigation, will contests, trust disputes, undue influence, capacity cases, claims of fiduciary breach, financial elder abuse cases, petitioning for court instructions, and contested guardianship and conservatorship cases. Denise Gorrell focuses on real property and commercial law, as well fiduciary litigation. She frequently represents clients on real estate disputes, business dissolution, and trust contests.

To register for this seminar, contact events@samuelslaw.com or call us at 503-226-2966.

GAO Reports on Guardian Abuse

The United States Government Accountability Office ("GAO") released its 58-page Report to the Chairman, Special Committee on Aging, U.S. Senate:  "Guardianships, Cases of Financial Exploitation, Neglect, and Abuse of Seniors."  (pdf) 

Although the "GAO could not determine whether allegations of financial or physical abuse by guardians are widespread," the report reveals horrific stories of abuse and three common themes:

1.  Abuse may occur when there is a failure by the court to adequately screen potential guardians, such as a failure to identify the proposed guardian’s prior criminal convictions or signficiant financial problems;

2.  Abuse may occur when there is a failure by the court to oversee guardians; and

3.  Abuse may occur when there is ineffective or failed communcation between the courts and federal or state agencies. 

With the U.S. Census reporting that the number of Americans aged 65 and older increasing by 60% by the year 2025, this is an important matter for the financial and physical well-being of our aging population. 

Protect yourself, your family, and your loved ones with preventative estate planning to incorporate Powers of Attorneys, Trusts, Wills, or other legal documents particularly suited to your needs.

And certainly, if you suspect abuse, speak up.  Contact information to report suspected abuse in Oregon was previously posted on this blog.   

Washington Certified Professional Guardian Board Publishes Annual Report

The Certified Professional Guardian Board recently published its 32-page 2009 annual report (pdf).  The CPG is appointed by the Washington State Supreme Court and regulates the certification of professional guardians in Washington. 

As a guardian – or if you work with guardians – you may find the report to be of interest.

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