(1)
Nothing contained in RCW 11.88.080 through 11.88.120, 11.92.010
through 11.92.040, 11.92.060 through 11.92.120, 11.92.170, and11.92.180
shall affect or impair the power of any court to
appoint a guardian ad litem to defend the interests of any
incapacitated person interested in any suit or matter pending
therein, or to commence and prosecute any suit in his or her
behalf.
(2) Prior to the appointment of a guardian or a limited
guardian, whenever it appears that the incapacitated person or
incapacitated person's estate could benefit from mediation and
such mediation would likely result in overall reduced costs to
the estate, upon the motion of the alleged incapacitated person
or the guardian ad litem, or subsequent to such appointment,
whenever it appears that the incapacitated person or
incapacitated person's estate could benefit from mediation and
such mediation would likely result in overall reduced costs to
the estate, upon the motion of any interested person, the court
may:
(a) Require any party or other person subject to the
jurisdiction of the court to participate in mediation;
(b) Establish the terms of the mediation; and
(c) Allocate the cost of the mediation pursuant to *RCW 11.96.140.
(3) Upon receipt of a petition for appointment of guardian
or limited guardian, except as provided herein, the court shall
appoint a guardian ad litem to represent the best interests of
the alleged incapacitated person, who shall be a person found or
known by the court to:
(a) Be free of influence from anyone interested in the
result of the proceeding; and
(b) Have the requisite knowledge, training, or expertise to
perform the duties required by this section.
The guardian ad litem shall within five days of receipt of
notice of appointment file with the court and serve, either
personally or by certified mail with return receipt, each party
with a statement including: His or her training relating to the
duties as a guardian ad litem; his or her criminal history as
defined in RCW 9.94A.030 for the period covering ten years prior
to the appointment; his or her hourly rate, if compensated;
whether the guardian ad litem has had any contact with a party to
the proceeding prior to his or her appointment; and whether he or
she has an apparent conflict of interest. Within three days of
the later of the actual service or filing of the guardian ad
litem's statement, any party may set a hearing and file and serve
a motion for an order to show cause why the guardian ad litem
should not be removed for one of the following three reasons:
(i) Lack of expertise necessary for the proceeding; (ii) an
hourly rate higher than what is reasonable for the particular
proceeding; or (iii) a conflict of interest. Notice of the
hearing shall be provided to the guardian ad litem and all
parties. If, after a hearing, the court enters an order
replacing the guardian ad litem, findings shall be included,
expressly stating the reasons for the removal. If the guardian
ad litem is not removed, the court has the authority to assess to
the moving party, attorneys' fees and costs related to the
motion. The court shall assess attorneys' fees and costs for
frivolous motions.
No guardian ad litem need be appointed when a parent is
petitioning for a guardian or a limited guardian to be appointed
for his or her minor child and the minority of the child, as
defined by RCW 11.92.010, is the sole basis of the petition. The
order appointing the guardian ad litem shall recite the duties
set forth in subsection (5) of this section. The appointment of
a guardian ad litem shall have no effect on the legal competency
of the alleged incapacitated person and shall not overcome the
presumption of competency or full legal and civil rights of the
alleged incapacitated person.
(4)(a) The superior court of each county shall develop and
maintain a registry of persons who are willing and qualified to
serve as guardians ad litem in guardianship matters. The court
shall choose as guardian ad litem a person whose name appears on
the registry in a system of consistent rotation, except in
extraordinary circumstances such as the need for particular
expertise. The court shall develop procedures for periodic
review of the persons on the registry and for probation,
suspension, or removal of persons on the registry for failure to
perform properly their duties as guardian ad litem. In the event
the court does not select the person next on the list, it shall
include in the order of appointment a written reason for its
decision.
(b) To be eligible for the registry a person shall:
(i) Present a written statement outlining his or her
background and qualifications. The background statement shall
include, but is not limited to, the following information:
(A) Level of formal education;
(B) Training related to the guardian ad litem's duties;
(C) Number of years' experience as a guardian ad litem;
(D) Number of appointments as a guardian ad litem and the
county or counties of appointment;
(E) Criminal history, as defined in RCW 9.94A.030; and
(F) Evidence of the person's knowledge, training, and
experience in each of the following: Needs of impaired elderly
people, physical disabilities, mental illness, developmental
disabilities, and other areas relevant to the needs of
incapacitated persons, legal procedure, and the requirements of
chapters 11.88 and 11.92 RCW.
The written statement of qualifications shall include the
names of any counties in which the person was removed from a
guardian ad litem registry pursuant to a grievance action, and
the name of the court and the cause number of any case in which
the court has removed the person for cause; and
(ii) Complete the training as described in (e) of this
subsection. The training is not applicable to guardians ad litem
appointed pursuant to special proceeding Rule 98.16W.
(c) Superior court shall remove any person from the guardian
ad litem registry who misrepresents his or her qualifications
pursuant to a grievance procedure established by the court.
(d) The background and qualification information shall be
updated annually.
(e) The department of social and health services shall
convene an advisory group to develop a model guardian ad litem
training program and shall update the program biennially. The
advisory group shall consist of representatives from consumer,
advocacy, and professional groups knowledgeable in developmental
disabilities, neurological impairment, physical disabilities,
mental illness, domestic violence, aging, legal, court
administration, the Washington state bar association, and other
interested parties.
(f) The superior court shall require utilization of the
model program developed by the advisory group as described in (e)
of this subsection, to assure that candidates applying for
registration as a qualified guardian ad litem shall have
satisfactorily completed training to attain these essential
minimum qualifications to act as guardian ad litem.
(5) The guardian ad litem appointed pursuant to this section
shall have the following duties:
(a) To meet and consult with the alleged incapacitated
person as soon as practicable following appointment and explain,
in language which such person can reasonably be expected to
understand, the substance of the petition, the nature of the
resultant proceedings, the person's right to contest the
petition, the identification of the proposed guardian or limited
guardian, the right to a jury trial on the issue of his or her
alleged incapacity, the right to independent legal counsel as
provided by RCW 11.88.045, and the right to be present in court
at the hearing on the petition;
(b) To obtain a written report according to RCW 11.88.045;
and such other written or oral reports from other qualified
professionals as are necessary to permit the guardian ad litem to
complete the report required by this section;
(c) To meet with the person whose appointment is sought as
guardian or limited guardian and ascertain:
(i) The proposed guardian's knowledge of the duties,
requirements, and limitations of a guardian; and
(ii) The steps the proposed guardian intends to take or has
taken to identify and meet the needs of the alleged incapacitated
person;
(d) To consult as necessary to complete the investigation
and report required by this section with those known relatives,
friends, or other persons the guardian ad litem determines have
had a significant, continuing interest in the welfare of the
alleged incapacitated person;
(e) To investigate alternate arrangements made, or which
might be created, by or on behalf of the alleged incapacitated
person, such as revocable or irrevocable trusts, durable powers
of attorney, or blocked accounts; whether good cause exists for
any such arrangements to be discontinued; and why such
arrangements should not be continued or created in lieu of a
guardianship;
(f) To provide the court with a written report which shall
include the following:
(i) A description of the nature, cause, and degree of
incapacity, and the basis upon which this judgment was made;
(ii) A description of the needs of the incapacitated person
for care and treatment, the probable residential requirements of
the alleged incapacitated person and the basis upon which these
findings were made;
(iii) An evaluation of the appropriateness of the guardian
or limited guardian whose appointment is sought and a description
of the steps the proposed guardian has taken or intends to take
to identify and meet current and emerging needs of the
incapacitated person;
(iv) A description of any alternative arrangements
previously made by the alleged incapacitated person or which
could be made, and whether and to what extent such alternatives
should be used in lieu of a guardianship, and if the guardian ad
litem is recommending discontinuation of any such arrangements,
specific findings as to why such arrangements are contrary to the
best interest of the alleged incapacitated person;
(v) A description of the abilities of the alleged
incapacitated person and a recommendation as to whether a
guardian or limited guardian should be appointed. If appointment
of a limited guardian is recommended, the guardian ad litem shall
recommend the specific areas of authority the limited guardian
should have and the limitations and disabilities to be placed on
the incapacitated person;
(vi) An evaluation of the person's mental ability to
rationally exercise the right to vote and the basis upon which
the evaluation is made;
(vii) Any expression of approval or disapproval made by the
alleged incapacitated person concerning the proposed guardian or
limited guardian or guardianship or limited guardianship;
(viii) Identification of persons with significant interest
in the welfare of the alleged incapacitated person who should be
advised of their right to request special notice of proceedings
pursuant to RCW 11.92.150; and
(ix) Unless independent counsel has appeared for the alleged
incapacitated person, an explanation of how the alleged
incapacitated person responded to the advice of the right to jury
trial, to independent counsel and to be present at the hearing on
the petition.
Within forty-five days after notice of commencement of the
guardianship proceeding has been served upon the guardian ad
litem, and at least fifteen days before the hearing on the
petition, unless an extension or reduction of time has been
granted by the court for good cause, the guardian ad litem shall
file its report and send a copy to the alleged incapacitated
person and his or her counsel, spouse or domestic partner, all
children not residing with a notified person, those persons
described in (f)(viii) of this subsection, and persons who have
filed a request for special notice pursuant to RCW 11.92.150. If
the guardian ad litem needs additional time to finalize his or
her report, then the guardian ad litem shall petition the court
for a postponement of the hearing or, with the consent of all
other parties, an extension or reduction of time for filing the
report. If the hearing does not occur within sixty days of
filing the petition, then upon the two-month anniversary of
filing the petition and on or before the same day of each
following month until the hearing, the guardian ad litem shall
file interim reports summarizing his or her activities on the
proceeding during that time period as well as fees and costs
incurred;
(g) To advise the court of the need for appointment of
counsel for the alleged incapacitated person within five court
days after the meeting described in (a) of this subsection unless
(i) counsel has appeared, (ii) the alleged incapacitated person
affirmatively communicated a wish not to be represented by
counsel after being advised of the right to representation and of
the conditions under which court-provided counsel may be
available, or (iii) the alleged incapacitated person was unable
to communicate at all on the subject, and the guardian ad litem
is satisfied that the alleged incapacitated person does not
affirmatively desire to be represented by counsel.
(6) If the petition is brought by an interested person or
entity requesting the appointment of some other qualified person
or entity and a prospective guardian or limited guardian cannot
be found, the court shall order the guardian ad litem to
investigate the availability of a possible guardian or limited
guardian and to include the findings in a report to the court
pursuant to subsection (5)(f) of this section.
(7) The parties to the proceeding may file responses to the
guardian ad litem report with the court and deliver such
responses to the other parties and the guardian ad litem at any
time up to the second day prior to the hearing. If a guardian ad
litem fails to file his or her report in a timely manner, the
hearing shall be continued to give the court and the parties at
least fifteen days before the hearing to review the report. At
any time during the proceeding upon motion of any party or on the
court's own motion, the court may remove the guardian ad litem
for failure to perform his or her duties as specified in this
chapter, provided that the guardian ad litem shall have five
days' notice of any motion to remove before the court enters such
order. In addition, the court in its discretion may reduce a
guardian ad litem's fee for failure to carry out his or her
duties.
(8) The court appointed guardian ad litem shall have the
authority, in the event that the alleged incapacitated person is
in need of emergency life-saving medical services, and is unable
to consent to such medical services due to incapacity pending the
hearing on the petition to give consent for such emergency
life-saving medical services on behalf of the alleged
incapacitated person.
(9) The court-appointed guardian ad litem shall have the
authority to move for temporary relief under chapter 7.40 RCW to
protect the alleged incapacitated person from abuse, neglect,
abandonment, or exploitation, as those terms are defined in RCW 74.34.020, or to address any other emergency needs of the alleged
incapacitated person. Any alternative arrangement executed
before filing the petition for guardianship shall remain
effective unless the court grants the relief requested under
chapter 7.40 RCW, or unless, following notice and a hearing at
which all parties directly affected by the arrangement are
present, the court finds that the alternative arrangement should
not remain effective.
(10) The guardian ad litem shall receive a fee determined by
the court. The fee shall be charged to the alleged incapacitated
person unless the court finds that such payment would result in
substantial hardship upon such person, in which case the county
shall be responsible for such costs: PROVIDED, That the court
may charge such fee to the petitioner, the alleged incapacitated
person, or any person who has appeared in the action; or may
allocate the fee, as it deems just. If the petition is found to
be frivolous or not brought in good faith, the guardian ad litem
fee shall be charged to the petitioner. The court shall not be
required to provide for the payment of a fee to any salaried
employee of a public agency.
(11) Upon the presentation of the guardian ad litem report
and the entry of an order either dismissing the petition for
appointment of guardian or limited guardian or appointing a
guardian or limited guardian, the guardian ad litem shall be
dismissed and shall have no further duties or obligations unless
otherwise ordered by the court. If the court orders the guardian
ad litem to perform further duties or obligations, they shall not
be performed at county expense.
(12) The guardian ad litem shall appear in person at all
hearings on the petition unless all parties provide a written
waiver of the requirement to appear.
(13) At any hearing the court may consider whether any
person who makes decisions regarding the alleged incapacitated
person or estate has breached a statutory or fiduciary duty.
[2008 c 6 § 804; 2000 c 124 § 1; 1999 c 360 § 1; 1996 c 249 § 10; 1995 c 297 § 4; 1991 c 289 § 5; 1990 c 122 § 8; 1977 ex.s. c 309 § 6; 1975 1st ex.s. c 95 § 9; 1965 c 145 § 11.88.090. Prior: 1917 c 156 § 211; RRS § 1581; prior: Code 1881 § 1619; 1873 p 318 § 314; 1860 p 228 § 336.]
NOTES:
Rules of court: Judgment for and settlement of claims of minors: SPR 98.16W.
*Reviser's note: RCW 11.96.140 was repealed by 1999 c 42 § 637, effective January 1, 2000.
Part headings not law -- Severability -- 2008 c 6: See RCW 26.60.900 and 26.60.901.
Grievance rules -- 2000 c 124: "Each superior court shall adopt rules establishing and governing procedures for filing, investigating, and adjudicating grievances made by or against guardians ad litem under Titles 11, 13, and 26 RCW." [2000 c 124 § 16.]
Intent -- 1996 c 249: See note following RCW 2.56.030.
Effective date -- 1990 c 122: See note following RCW 11.88.005.
Severability -- 1977 ex.s. c 309: See note following RCW 11.88.005.
Costs against guardian of infant plaintiff: RCW 4.84.140.
District judge, guardian ad litem if defendant minor, appointment of: RCW 12.04.150.
Execution against for costs against infant plaintiff: RCW 4.84.140.
Incapacitated persons
appearance in civil action: RCW 4.08.060.
appointment for civil actions: RCW 4.08.060.
Liability for costs against infant plaintiffs: RCW 4.84.140.
Minors, for
appearance in civil actions: RCW 4.08.050.
appointment for civil actions: RCW 4.08.050.
district court proceedings: RCW 12.04.150.
Registration of land titles, appointment for minors: RCW 65.12.145.