SB 5604 — Concerning the uniform guardianship, conservatorship, and other protective arrangements act.

S-2188.4SECONDZ-0023.4SENATE SUBSTITUTE SENATE BILL 5604State of Washington66th Legislature2019 Regular SessionBySenateSessionBySenators Ways & Means (originally sponsored by Senators Pedersen, Padden, Conway, Kuderer, Keiser, Salomon, Bailey, and Dhingra;

by request of Uniform Law Commission)READCommissionAN FIRST TIME 03/01/19.AN ACT Relating to the uniform guardianship, conservatorship, and other protective arrangements act;

amending RCW 11.125.080;

repealing RCW 11.88.005, 11.88.008, 11.88.010, 11.88.020, 11.88.030, 11.88.040, 11.88.045, 11.88.080, 11.88.090, 11.88.093, 11.88.095, 11.88.097, 11.88.100, 11.88.105, 11.88.107, 11.88.110, 11.88.120, 11.88.125, 11.88.127, 11.88.130, 11.88.140, 11.88.150, 11.88.160, 11.88.170, 11.88.900, 11.92.010, 11.92.035, 11.92.040, 11.92.043, 11.92.050, 11.92.053, 11.92.056, 11.92.060, 11.92.090, 11.92.096, 11.92.100, 11.92.110, 11.92.115, 11.92.120, 11.92.125, 11.92.130, 11.92.140, 11.92.150, 11.92.160, 11.92.170, 11.92.180, 11.92.185, 11.92.190, 11.92.195, 26.10.010, 26.10.015, 26.10.020, 26.10.030, 26.10.032, 26.10.034, 26.10.040, 26.10.045, 26.10.050, 26.10.060, 26.10.070, 26.10.080, 26.10.090, 26.10.100, 26.10.110, 26.10.115, 26.10.120, 26.10.130, 26.10.135, 26.10.140, 26.10.150, 26.10.160, 26.10.170, 26.10.180, 26.10.190, 26.10.200, 26.10.210, 26.10.220, and 26.10.910;11.92.195;

DEFINITIONS.The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.(1) "Adult" means an individual at least eighteen years of age or an emancipated individual under eighteen years of age.(2) "Adult subject to conservatorship" means an adult for whom a conservator has been appointed under this chapter.(3) "Adult subject to guardianship" means an adult for whom a guardian has been appointed under this chapter.(4) "Asset protection arrangement" is a verified receipt signed by the custodian of funds stating that a savings and loan association or bank, trust company, escrow corporation, or other corporations approved by the court hold the cash or securities of the individual subject to conservatorship subject to withdrawal only by order of the court.(5) "Claim" includes a claim against an individual or conservatorship estate, whether arising in contract, tort, or otherwise.(6) "Commissioner" means the person appointed by the court pursuant to section 512 of this act.(7) "Conservator" means a person appointed by a court to make decisions with respect to the property or financial affairs of an individual subject to conservatorship.

The term includes a co-conservator.(7)co-conservator.(8) "Conservatorship estate" means the property subject to conservatorship under this chapter.(8)chapter.(9) "Evaluation and treatment facility" has the same meaning as provided in RCW 71.05.020.(9)71.05.020.(10) "Full conservatorship" means a conservatorship that grants the conservator all powers available under this chapter.(10)chapter.(11) "Full guardianship" means a guardianship that grants the guardian all powers available under this chapter.(11)chapter.(12) "Guardian" means a person appointed by the court to make decisions with respect to the personal affairs of an individual.

The term includes a co-guardian but does not include a guardian ad litem.(12)litem.(13) "Guardian ad litem" means a person appointed to inform the court about, and to represent, the needs and best interests of an individual.(13)individual.(14) "Individual subject to conservatorship" means an adult or minor for whom a conservator has been appointed under this chapter.(14)chapter.(15) "Individual subject to guardianship" means an adult or minor for whom a guardian has been appointed under this chapter.(15)chapter.(16) "Less restrictive alternative" means an approach to meeting an individual's needs which restricts fewer rights of the individual than would the appointment of a guardian or conservator.

The term includes supported decision making, appropriate technological assistance, appointment of a representative payee, and appointment of an agent by the individual, including appointment under a power of attorney for health care or power of attorney for finances.(16)finances.(17) "Letters of office" means a record issued by a court certifying a guardian's or conservator's authority to act.(17)act.(18) "Limited conservatorship" means a conservatorship that grants the conservator less than all powers available under this chapter, grants powers over only certain property, or otherwise restricts the powers of the conservator.(18)conservator.(19) "Limited guardianship" means a guardianship that grants the guardian less than all powers available under this chapter or otherwise restricts the powers of the guardian.(19)guardian.(20) "Long-term care facility" has the same meaning as provided in RCW 70.129.010.(20)70.129.010.(21) "Minor" means an unemancipated individual under eighteen years of age.(21)age.(22) "Minor subject to conservatorship" means a minor for whom a conservator has been appointed under this chapter.(22)chapter.(23) "Minor subject to guardianship" means a minor for whom a guardian has been appointed under this chapter.(23)chapter.(24) "Parent" does not include an individual whose parental rights have been terminated.(24)terminated.(25) "Person" means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.(25)entity.(26) "Professional guardian or conservator" means a guardian or conservator appointed under this chapter who is not a relativemember of the family of the person subject to guardianship or conservatorship established under this chapter and who charges fees for carrying out the duties of court-appointed guardian or conservator for three or more persons.(26)persons.(27) "Property" includes tangible and intangible property.(27)property.(28) "Protective arrangement instead of conservatorship" means a court order entered under section 503 of this act.(28)act.(29) "Protective arrangement instead of guardianship" means a court order entered under section 502 of this act.(29)act.(30) "Protective arrangement under article 5 of this chapter" means a court order entered under section 502 or 503 of this act.(30)act.(31) "Record," used as a noun, means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.(31)form.(32) "Relative" means any person related by blood or by law to the person subject to guardianship, conservatorship, or other protective arrangements.(32) "Respondent" means an individual for whom appointment of a guardian or conservator or a protective arrangement instead of guardianship or conservatorship is sought.(33) "Sign" means, with present intent to authenticate or adopt a record:(a) To execute or adopt a tangible symbol;

or(b) To attach to or logically associate with the record an electronic symbol, sound, or process.(34) "Special agent" means the person appointed by the court pursuant to section 512 of this act.(35) "Standby guardian" means a person appointed by the court under section 208 of this act.(36)act.(35) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

The term includes a federally recognized Indian tribe.(37)tribe.(36) "Supported decision making" means assistance from one or more persons of an individual's choosing in understanding the nature and consequences of potential personal and financial decisions, which enables the individual to make the decisions, and in communicating a decision once made if consistent with the individual's wishes.(38)wishes.(37) "Visitor" means the person appointed by the court pursuant to section 304(1) or 405(1) of this act.NEW SECTION.  Sec.

The court shall issue new letters of office to reflect the limitation.(5) A guardian or conservator may not act on behalf of a person under guardianship or conservatorship without valid letters of office.(6) The clerk of the superior court shall issue letters of guardianship or conservatorship in or substantially in the same form as set forth in section 605 of this act.(7)act.NEW This chapter does not affect the validity of letters of office issued under chapter 11.88 RCW prior to the effective date of this section.NEW SECTION.  Sec.

DISCLOSURE OF BANKRUPTCY OR CRIMINAL HISTORY.(1) Before accepting appointment as a guardian or conservator, a person shall disclose to the court whether the person:(a) Is or has been a debtor in a bankruptcy, insolvency, or receivership proceeding;(b)proceeding; Has been convicted of:(i) A felony;(ii) A crime involving dishonesty, neglect, violence, or use of physical force;

or(iii)or(b) OtherHas crimesbeen relevantconvicted toof:(i) theA functionsfelony;(ii) theA individualcrime wouldinvolving assumedishonesty, asneglect, guardianviolence, or conservator;use of physical force;

or(c)or(iii) HasOther anycrimes courtrelevant findingto ofthe afunctions breachthe ofindividual fiduciarywould dutyassume oras aguardian violation of any state's consumer protection act, or violationconservator.(2) of any other statute proscribing unfair or deceptive acts or practices in the conduct of any business.(2) A guardian or conservator that engages or anticipates engaging an agent the guardian or conservator knows has been convicted of a felony, a crime involving dishonesty, neglect, violence, or use of physical force, or other crimes relevant to the functions the agent is being engaged to perform promptly shall disclose that knowledge to the court.(3) If a conservator engages or anticipates engaging an agent to manage finances of the individual subject to conservatorship and knows the agent is or has been a debtor in a bankruptcy, insolvency, or receivership proceeding, the conservator promptly shall disclose that knowledge to the court.(4) If a guardian or conservator that engages or anticipates engaging an agent and knows the agent has any court finding of a breach of fiduciary duty or a violation of any state's consumer protection act, or violation of any other statute proscribing unfair or deceptive acts or practices in the conduct of any business, the guardian or conservator promptly shall disclose that knowledge to the court.NEW SECTION.  Sec.

No person is qualified to serve as a guardian or conservator who is:(a) Under eighteen years of age except as otherwise provided herein;(b)(i)herein;(b) ExceptConvicted as provided otherwise in (b)(ii) of this subsection, convicted of a crime involving dishonesty, neglect, or use of physical force or other crime relevant to the functions the individual would assume as guardian;(ii)guardian;(c) A court may, upon consideration of the facts, find that a relative convicted of a crime is qualified to serve as a guardian or conservator;(c) A nonresident of this state who has not appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate and caused such appointment to be filed with the court;(d) A corporation not authorized to act as a fiduciary, guardian, or conservator in the state;(e) A person whom the court finds unsuitable.(2) If a guardian, or conservator is not a certified professional guardian, conservator, or financial institution authorized under this section, the guardian or conservator must complete any standardized training video or web cast for lay guardians or conservators made available by the administrative office of the courts and the superior court where the petition is filed unless granted a waiver by the court.

If a conservator, other than the guardian or a person affiliated with the guardian, is appointed for the individual, reasonable compensation and reimbursement to the guardian may be approved and paid by the conservator without court approval.(2) Subject to court approval, a conservator is entitled to reasonable compensation for services and reimbursement for appropriate expenses from the property of the individual subject to conservatorship.(3) In determining reasonable compensation for a guardian or conservator, the court, or a conservator in determining reasonable compensation for a guardian as provided in subsection (1) of this section, shall consider:(a) The necessity and quality of the services provided;(b) The experience, training, professional standing, and skills of the guardian or conservator;(c) The difficulty of the services performed, including the degree of skill and care required;(d) The conditions and circumstances under which a service was performed, including whether the service was provided outside regular business hours or under dangerous or extraordinary conditions;(e) The effect of the services on the individual subject to guardianship or conservatorship;(f) The extent to which the services provided were or were not consistent with the guardian's plan under section 318316 of this act or conservator's plan under section 419 of this act;

PETITION AFTER APPOINTMENT FOR INSTRUCTION OR RATIFICATION.(1) A guardian or conservator may petition the court for instruction concerning fiduciary responsibility or ratification of a particular act related to the guardianship or conservatorship.(2) On reasonable notice and hearing on a petition under subsection (1) of this section, the court may give an instruction and issue an appropriate order.(3)order.NEW The petitioner must provide reasonable notice of the petition and hearing to the individual subject to a guardianship or conservatorship.NEW SECTION.  Sec.

USE OF AGENT BY GUARDIAN OR CONSERVATOR.(1) Except as otherwise provided in subsection (3) of this section, a guardian or conservator may delegate a power to an agent which a prudent guardian or conservator of comparable skills could delegate prudently under the circumstances if the delegation is consistent with the guardian's or conservator's fiduciary duties and the guardian's plan under section 318316 of this act or the conservator's plan under section 419 of this act.(2) In delegating a power under subsection (1) of this section, the guardian or conservator shall exercise reasonable care, skill, and caution in:(a) Selecting the agent;(b) Establishing the scope and terms of the agent's work in accordance with the guardian's plan under section 318316 of this act or the conservator's plan under section 419 of this act;(c) Monitoring the agent's performance and compliance with thethedelegation; delegation;(d) Redressing an act or omission of the agent which would constitute a breach of the guardian's or conservator's duties if done by the guardian or conservator;

and(e)and(d) EnsuringRedressing aan backgroundact checkor isomission conductedof on the agent,agent orwhich conductedwould onconstitute personsa employedbreach byof the agentguardian's whenor thoseconservator's personsduties areif providingdone servicesby to the individualguardian subject to a guardianship or conservatorship.(3)conservator.(3) A guardian or conservator may not delegate all powers to an agent.(4) In performing a power delegated under this section, an agent shall:(a) Exercise reasonable care to comply with the terms of the delegation and use reasonable care in the performance of the power;

GRIEVANCE AGAINST GUARDIAN OR CONSERVATOR.(1) An individual who is subject to guardianship or conservatorship, or person interested in the welfare of an individual subject to guardianship or conservatorship, that reasonably believes the guardian or conservator is breaching the guardian's or conservator's fiduciary duty or otherwise acting in a manner inconsistent with this chapter may file a grievance in a record with the court.(2) Subject to subsection (3) of this section, after receiving a grievance under subsection (1) of this section, the court:(a) Shall review the grievance and, if necessary to determine the appropriate response, court records related to the guardianship or conservatorship;(b) Shall schedule a hearing if the individual subject to guardianship or conservatorship is an adult and the grievance supports a reasonable belief that:(i) Removal of the guardian and appointment of a successor may be appropriate under section 320318 of this act;(ii) Termination or modification of the guardianship may be appropriate under section 321319 of this act;(iii) Removal of the conservator and appointment of a successor may be appropriate under section 430 of this act;(iv) Termination or modification of the conservatorship may be appropriate under section 431 of this act;

or(v)or(iv) ATermination hearing is necessary to resolve the allegations set forth in the grievance;(c) May take any action supported by the evidence, including:(i) Ordering the guardian or conservatormodification toof provide the courtconservatorship amay report,be accounting,appropriate inventory,under updatedsection plan,431 orof otherthis information;(ii)act; Appointing a guardian ad litem;(iii) Appointing an attorney for the individual subject to guardianship or conservatorship;

or(iv)and(c) HoldingMay atake hearing.(3)any Theaction courtsupported mayby declinethe toevidence, actincluding:(i) underOrdering subsectionthe (2)guardian ofor thisconservator sectionto ifprovide athe similarcourt grievancea wasreport, filedaccounting, withininventory, theupdated sixplan, monthsor precedingother theinformation;(ii) filingAppointing ofa theguardian currentad grievancelitem;(iii) andAppointing thean courtattorney followedfor the proceduresindividual ofsubject subsectionto (2)guardianship ofor thisconservatorship; section in considering the earlier grievance;

andor(iv) mayHolding levya necessaryhearing.(3) sanctions,The includingcourt butmay notdecline limited to theact impositionunder subsection (2) of reasonablethis attorneysection fees,if costs,a strikingsimilar pleadings,grievance orwas otherfiled appropriatewithin relief,the ifsix aftermonths considerationpreceding the courtfiling findsof that the current grievance isand madethe forcourt reasonfollowed tothe harass,procedures delay,of withsubsection malice,(2) orof otherthis badsection faith.(4)in considering the earlier grievance.(4) In any court action under this section wherethat theinvolves courta finds the professional guardianguardian, or conservator breached a fiduciary duty, the court must direct the clerk of the court to send a copy of the order entered under this section to the certified professional guardianship board.NEW SECTION.  Sec.

DELEGATION BY PARENT.Except as otherwise provided in RCW 11.125.410, a parent of a minor, by a power of attorney, may delegate to another person for a period not exceeding twenty-fournine months any of the parent's powers regarding care, custody, or property of the minor, other than power to consent to marriage or adoption.NEW SECTION.  Sec.

Payment of the filing fee shall be ordered from the estate of the respondent person at the hearing on the merits of the petition, unless in the judgment of the court, such payment would impose a hardship upon the respondent, in which case the filing shall be waived.(2) No filing fee shall be charged by the court for filing a petition for guardianship, conservatorship, or other protective arrangement filed under sections 302, 402, and 504 of this act if the petition alleges that the respondent has total assets of a value of less than three thousand dollars.(3)dollars.NEW No filing fee shall be charged by the court for filing a petition for guardianship or conservatorship filed under article 2 of this act, where the potential guardian is a relative and not a professional guardian or conservator.NEW SECTION.  Sec.

CONSTRUCTION—CHAPTER APPLICABLE TO STATE REGISTERED DOMESTIC PARTNERSHIPS—2009 c 521.For the purposes of this chapter, the terms spouse, marriage, marital, husband, wife, widow, widower, next of kin, and relativefamily shall be interpreted as applying equally to state registered domestic partnerships or individuals in state registered domestic partnerships as well as to marital relationships and married persons, and references to dissolution of marriage shall apply equally to state registered domestic partnerships that have been terminated, dissolved, or invalidated, to the extent that such interpretation does not conflict with federal law.

and(b) Each parent of the minor, unless the court finds by clear and convincing evidence that the parent cannot with due diligence be located and served or the parent waived, in a record, the right to notice.(4) If a petitioner is unable to serve notice under subsection (1)(a) of this section on a parent of a minor or alleges that the parent waived, in a record, the right to notice under this section, the court shall appoint a visitor who shall:(a) Interview the petitioner and the minor;(b) If the petitioner alleges the parent cannot be located, ascertain whether the parent cannot be located with due diligence;(c)diligence; Investigate any other matter relating to the petition the court directs;

and(d)and(c) AscertainInvestigate whetherany theother parentmatter consentsrelating to the guardianpetition for the minor.NEWcourt directs.NEW SECTION.  Sec.

ATTORNEY FOR MINOR OR PARENT.(1) The court isshall not required, but may appoint an attorney to represent a minor who is the subject of a proceeding under section 202 of this act if:(a) Requested by the minor and the minor is twelve years of age or older;(b) Recommended by a guardian ad litem;

and(c) If the minor's wishes are not reasonably ascertainable, advocate for the minor's legalbest rights.(3)interest.(3) A minor who is the subject of a proceeding under section 202 of this act may retain an attorney to represent the minor in the proceeding.(4) A parent of a minor who is the subject of a proceeding under section 202 of this act may retain an attorney to represent the parent in the proceeding.(5) The court mustshall appoint an attorney to represent a parent of a minor who is the subject of a proceeding under section 202 of this act if:(a) The parent hasobjects appearedto inappointment of a guardian for the proceeding;(b)minor;(b) The parentcourt determines that counsel is indigent;needed to ensure that consent to appointment of a guardian is informed;

and(c)or(c) AnyThe ofcourt theotherwise followingdetermines isthe true:(i) The parent objectsneeds torepresentation.NEW appointmentSECTION.  Sec. of a guardian for the minor;

or(ii) The court determines that counsel is needed to ensure that consent to appointment of a guardian is informed;

or(iii) The court otherwise determines the parent needs representation.(6) The court must inquire about whether a parent is indigent to ensure that counsel is appointed in a timely manner.

For purposes of this section, "indigent" has the same meaning as under RCW 10.101.010.(7) The court is not required, but may appoint an attorney to represent a parent of a minor who is the subject of a proceeding under section 202 of this act, even if the parent is not indigent, if:(a) The parent objects to appointment of a guardian for the minor;(b) The court determines that counsel is needed to ensure that consent to appointment of a guardian is informed;

or(c) The court otherwise determines that the parent needs representation.(8) A party represented by an attorney in proceedings under this article has the right to introduce evidence, to be heard in his or her own behalf, and to examine witnesses.

If a party to an action under this article is represented by counsel, no order may be provided to that party for signature without prior notice and provision of the order to counsel.NEW SECTION.  Sec.

ATTENDANCE AND PARTICIPATION AT HEARING FOR APPOINTMENT OF GUARDIAN FOR MINOR.(1) The court shall allowrequire a minor who is the subject of a hearing under section 203 of this act to attend the hearing and allow the minor to participate in the hearing unless the court determines, by clear and convincing evidence presented at the hearing or a separate hearing, that:(a) The minor consistently and repeatedly refused to attend the hearing after being fully informed of the right to attend and, if the minor is twelve years of age or older, the potential consequences of failing to do so;(b) There is no practicable way for the minor to attend the hearing;(c) The minor lacks the ability or maturity to participate meaningfully in the hearing;

or(b)or(d) Attendance would be harmful to the minor.(2) Unless excused by the court for good cause, the person proposed to be appointed as guardian for a minor shall attend a hearing under section 203 of this act.(3) Each parent of a minor who is the subject of a hearing under section 203 of this act has the right to attend the hearing.(4) A person may request permission to participate in a hearing under section 203 of this act.

The emergency guardian shall make any report the court requires.(7)requires.NEW Notwithstanding subsection (2) of this section, the court may extend an emergency guardianship pending the outcome of a full hearing under section 202 or 208 of this act.NEW SECTION.  Sec.

POWERS OF GUARDIAN FOR MINOR.(1) Except as otherwise limited by court order, a guardian of a minor has the powers a parent otherwise would have regarding the minor's support, care, education, health, safety, and welfare.(2) Except as otherwise limited by court order, a guardian for a minor may:(a) Apply for and receive funds and benefits otherwise payable for the support of the minor to the minor's parent, guardian, or custodian under a statutory system of benefits or insurance or any private contract, devise, trust, conservatorship, or custodianship;(b) Unless inconsistent with a court order entitled to recognition in this state, take custody of the minor and establish the minor's place of dwelling and, on authorization of the court, establish or move the minor's dwelling outside this state;(c) If the minor is not subject to conservatorship, commence a proceeding, including an administrative proceeding, or take other appropriate action to compel a person to support the minor,minor pay child support, or make othera paymentspayment for the benefit of the minor;(d) Consent to health or other care, treatment, or service for the minor;