NEW GUARDIANSHIP LAW AND ALTERNATIVES TO GUARDIANSHIP THE ARC OF WASHINGTON STATE MARCH 3, 2022

NEW GUARDIANSHIP LAW
AND ALTERNATIVES TO GUARDIANSHIP
  THE ARC OF WASHINGTON STATE

         MARCH 3, 2022

***THE FOLLOWING IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND IS NOT
                        INTENDED AS LEGAL ADVICE

                                 Administrative Office of the Courts
                                 Office of Guardianship and Elder
                                              Services
                               guardianshipprogram@courts.wa.gov
                               Helpline: 360-704-1925

                               https://www.courts.wa.gov/guardianportal/

LAW CHANGE - JANUARY 1, 2022

Vocabulary
 Changes
New alternatives
 to guardianship
Some new
 procedures

GUARDIANSHIP

Maximizing independence
 and dignity of the
 individual
Court appoints the
 guardian and has
 oversight of guardianship
 – information and
 reporting to the court
Guardian is a fiduciary

TODAY’S PRESENTATION

INTRODUCTION TO NEW LAW - VOCABULARY AND ALTERNATIVES TO
 GUARDIANSHIP

EXISTING GUARDIANSHIPS – WHAT CHANGES?

PETITIONING FOR GUARDIANSHIP UNDER THE NEW LAW AND ALTERNATIVES
 TO GUARDIANSHIP

VOCABULARY CHANGES

Respondent – in court
proceedings when a
petition has been filed

Individual – if a
guardianship has been
established

GUARDIAN

APPOINTED FOR HEALTH, SAFETY WELFARE DECISIONS
*GUARDIANS MAY HAVE SOME LIMITED FINANCIAL AND PROPERTY POWERS

LIMITED OR FULL
USED TO BE CALLED “GUARDIAN OF THE PERSON”

CONSERVATOR

APPOINTED FOR PROPERTY AND FINANCIAL DECISIONS

LIMITED OR FULL
USED TO BE CALLED “GUARDIAN OF THE ESTATE”

LETTERS OF GUARDIANSHIP

• LETTERS OF GUARDIANSHIP/CONSERVATORSHIP
• WILL INDICATE FULL OR LIMITED
• DOCUMENT THAT SHOWS THE AUTHORITY TO ACT
• MAY BE REFERRED TO AS “LETTERS OF OFFICE” - IT
  MEANS THE SAME THING

ALTERNATIVES TO GUARDIANSHIP OR
                    CONSERVATORSHIP

What are the alternatives to
a guardianship or
conservatorship?

~Before establishing a
guardianship/conservatorship

~During a guardianship/
conservatorship

LESS RESTRICTIVE ALTERNATIVES - EXAMPLES

ASSISTIVE TECHNOLOGY
REPRESENTATIVE PAYEE
SUPPORTED DECISION MAKING AGREEMENTS

SUPPORTED DECISION MAKING AGREEMENTS
    SUPPORTED DECISION MAKING AGREEMENTS
              RCW 11.130.700-755

FOR ADULTS WITH DISABILITIES WHO NEED ASSISTANCE WITH
 DECISIONS REGARDING DAILY LIVING
DECISIONS ARE MADE BY THE INDIVIDUAL
IT’S AN AGREEMENT BETWEEN AN INDIVIDUAL AND A
 “SUPPORTER” – NO COURT PROCESS REQUIRED

WHAT DOES A SUPPORTER DO?
A SUPPORTER PROVIDES ASSISTANCE IN ANY OR ALL:

1. UNDERSTANDING CONSEQUENCES, OPTIONS, RESPONSIBILITIES
2. OBTAINING INFORMATION INCLUDING MEDICAL, PSYCHOLOGICAL,
   FINANCIAL, EDUCATIONAL, OR TREATMENT RECORDS
3. ASSISTS THE INDIVIDUAL IN UNDERSTANDING THAT INFORMATION
4. ASSISTS IN COMMUNICATING THAT INFORMATION

RULES @ SUPPORTED DECISION MAKING
                   AGREEMENTS

HAS TO BE IN WRITING
NEED TWO WITNESSES OR A NOTARY (WITNESSES CAN’T BE PAID
 PROVIDERS, OR A SUPPORTER, OR EMPLOYEE OR AGENT OF A SUPPORTER, MUST
 UNDERSTAND INDIVIDUAL’S TYPE OF COMMUNICATION)

MUST BE ENTERED INTO VOLUNTARILY – NOT UNDER COERCION
 OR UNDUE INFLUENCE
GENERAL FORM IS IN THE STATUTE (11.130.745)

WHO CAN’T BE A SUPPORTER?

• EMPLOYER OR EMPLOYEE OF THE ADULT WITH A DISABILITY, UNLESS THE PERSON IS AN
  IMMEDIATE FAMILY MEMBER OF THE ADULT WITH A DISABILITY;

• A PERSON DIRECTLY PROVIDING PAID SUPPORT SERVICES TO THE ADULT WITH A DISABILITY,
  UNLESS THE PERSON IS AN IMMEDIATE FAMILY MEMBER OF THE ADULT WITH A DISABILITY; AND

• AN INDIVIDUAL AGAINST WHOM THE PERSON WITH A DISABILITY HAS OBTAINED AN ORDER
  OF PROTECTION FROM ABUSE, OR AN INDIVIDUAL WHO IS THE SUBJECT OF A CIVIL OR
  CRIMINAL ORDER PROHIBITING CONTACT WITH THE ADULT WITH A DISABILITY

OTHER THINGS TO KNOW ABOUT SUPPORTED
     DECISION MAKING AGREEMENTS (SDMA)

THE INDIVIDUAL CAN ACT AND MAKE DECISIONS WITHOUT
 HAVING THE SUPPORTER ASSIST THEM
THE SUPPORTER CAN ONLY TAKE THE ACTIONS THAT THE
 AGREEMENT AUTHORIZES THEM TO DO
THE INDIVIDUAL OR THE SUPPORTER CAN END THE AGREEMENT
 AT ANY TIME

OTHER THINGS TO KNOW ABOUT SUPPORTED
      DECISION MAKING AGREEMENTS (SDMA)

THIRD PARTIES CAN RELY ON A SUPPORTED DECISION MAKING
 AGREEMENT AND NOT BE LIABLE IF RELIANCE IS IN GOOD FAITH
DSHS FINDINGS OF ABUSE, NEGLECT OR EXPLOITATION OF
 THE INDIVIDUAL BY THE SUPPORTER END THE AGREEMENT
PEOPLE WHO HAVE A COPY OF THE AGREEMENT OR KNOW
 ABOUT IT ARE REQUIRED TO REPORT ABUSE, NEGLECT OR
 EXPLOITATION BY A SUPPORTER

PROTECTIVE ARRANGEMENTS

THE SAME COURT PROCESS AS ESTABLISHING A GUARDIANSHIP

INSTEAD OF SETTING UP A GUARDIANSHIP OR CONSERVATORSHIP – COURT ONLY ORDERS
 AN ARRANGEMENT THAT ADDRESSES THE INDIVIDUAL’S NEEDS

PROTECTIVE ARRANGEMENTS ARE INTENDED TO BE UNIQUE TO THE INDIVIDUAL AND BE A
 LESS INTRUSIVE WAY TO MEET THEIR NEEDS

PROTECTIVE ARRANGEMENTS EXAMPLES IN THE LAW

GUARDIANSHIP – E.G., MEDICAL PROCEDURE OR REFUSAL, VISITS WITH SPECIFIC
PERSONS, RESTRICTING ACCESS BY SPECIFIC PERSON TO INDIVIDUAL

CONSERVATORSHIP – PROPERTY SALE, PURCHASE OF ANNUITY, ENTRY INTO
CONTRACT, RESTRICTING ACCESS TO INDIVIDUAL AND/OR PROPERTY

EXISTING GUARDIANSHIPS

           What does the
           change in law mean
           for an existing
           guardianship?

EXISTING GUARDIANSHIPS

LETTERS OF GUARDIANSHIP – ARE STILL IN EFFECT
NEW LAW APPLIES STARTING JANUARY 1, 2022*
IF APPOINTED AS GUARDIAN OF THE PERSON AND THE ESTATE, YOU WOULD
 BE THE GUARDIAN AND CONSERVATOR
FINANCIAL INSTITUTIONS MAY WANT LETTERS OF CONSERVATORSHIP – MAY
 NEED TO REQUEST FROM THE COURT – BUT THE COURT MAY REQUIRE CERTAIN
 STEPS

EXISTING GUARDIANSHIPS

LOCAL SUPERIOR COURTS TRANSITIONS – VARY BY COUNTY

HTTPS://WWW.COURTS.WA.GOV/COURT_DIR/?FA=COURT_DIR.COUNTY

EXISTING GUARDIANSHIPS

COURT MAY REQUIRE THAT YOU FILE A NEW GUARDIAN/CONSERVATOR’S
 PLAN – NEW FORM THAT ASKS FOR ADDITIONAL INFORMATION
GUARDIAN/CONSERVATOR’S REPORT – IS A NEW FORM THAT ASKS FOR
 ADDITIONAL INFORMATION
COURT MAY REQUIRE A PROPOSED ORDER CONVERTING TO AN 11.130
 GUARDIANSHIP (THE NEW LAW)
COURT MAY REQUIRE THAT YOU TAKE THE LAY GUARDIAN TRAINING ON THE
 NEW LAW

EXISTING GUARDIANSHIPS – WHAT ABOUT NEW
          ALTERNATIVES TO GUARDIANSHIP?

WOULD A PROTECTIVE ARRANGEMENT OR SUPPORTED DECISION MAKING
 AGREEMENT BE AN OPTION FOR THE INDIVIDUAL?

GUARDIAN – RESPONSIBILITY TO BRING A MOTION TO MODIFY (CHANGE) OR
 TERMINATE (END) THE GUARDIANSHIP

DUTIES OF GUARDIANS AND CONSERVATORS

FIDUCIARY

PROMOTE INDIVIDUAL’S SELF DETERMINATION

DECISION MAKING STANDARDS – SUBSTITUTED JUDGMENT, BEST
INTEREST, PRUDENT INVESTOR

GUARDIAN’S PLAN INCLUDES
             (a) The living arrangement, services,
             and supports the guardian expects to
             arrange, facilitate, or continue for the
             adult;
             (b) Social and educational activities the
             guardian expects to facilitate on
             behalf of the adult;
             (c) Any person with whom the adult has
             a close personal relationship or
             relationship involving regular visitation
             and any plan the guardian has for
             facilitating visits with the person;

GUARDIAN’S PLAN, CON’T.
(d) The anticipated nature and frequency of the
guardian's visits and communication with the
adult;
(e) Goals for the adult, including any goal
related to the restoration of the adult's rights,
and how the guardian anticipates achieving the
goals;
(f) Whether the adult has an existing plan and, if
so, whether the guardian's plan is consistent with
the adult's plan; and
(g) A statement or list of the amount the
guardian proposes to charge for each service
the guardian anticipates providing to the adult

PERIODIC REPORTS

GUARDIANS AND CONSERVATORS FILE ON 1/2/3 YEAR BASIS
COURT MAY REQUIRE THE CONSERVATOR’S REPORT TO BE FILED
 ANNUALLY

NOTICE TO THE INDIVIDUAL AND NOTICE PARTIES

MANY NOTICE REQUIREMENTS UNDER THE UGA – RIGHTS,
RESIDENTIAL CHANGES, DELEGATING POWERS, COPIES OF PLANS AND REPORTS

NO MORE STANDBY GUARDIANS

A SUCCESSOR GUARDIAN CAN BE APPOINTED
A CO-GUARDIAN CAN BE APPOINTED
RULES ABOUT DELEGATING A GUARDIAN OR
 CONSERVATOR’S RESPONSIBILITIES

LIMITS ON AUTHORITY – COURT APPROVAL NEEDED-
                 NEW RULES

                  Guardian – certain residential moves,
                  certain medical decisions, rights to
                  association of the individual

                  Conservators – certain transactions,
                  e.g. most real estate, gifts

LAY GUARDIAN TRAINING

 THERE’S A TRAINING ON THE NEW LAW AVAILABLE ON THE ADMINISTRATIVE OFFICE OF THE
  COURTS WEBSITE:
 HTTPS://WWW.COURTS.WA.GOV/GUARDIANPORTAL/INDEX.CFM?
 FA=GUARDIANPORTAL.ADULTLAYGUARDIANSHIP
NO PASSWORD REQUIRED. GUARDIANS CAN REVIEW THE MODULES AT
 THEIR OWN PACE.
IMPORTANT INFORMATION ABOUT THE NEW LAW

BASIC PRINCIPLES REMAIN

               Respect for individual’s
                preferences and
                autonomy
               Keep good records
               Don’t commingle money
               File reports with the court
                on time
               Give notice to individual
                and others beforehand

PETITIONING FOR A GUARDIANSHIP,
 CONSERVATORSHIP OR PROTECTIVE ARRANGEMENT

LEGAL STANDARD – ABILITY TO RECEIVE AND EVALUATION INFORMATION,
 MAKE OR COMMUNICATE DECISIONS
COURT VISITORS
PROFESSIONAL EVALUATION
PETITION, HEARING, REQUIRED NOTICE, ETC.
LOCAL SUPERIOR COURT’S RULES ON HOW TO FILE
WHAT OTHER ALTERNATIVE HAVE BEEN EXPLORED?

PETITIONING FOR A GUARDIANSHIP,
CONSERVATORSHIP OR PROTECTIVE ARRANGEMENT

NAVIGATING NEW TERRITORY

        Guardianship – a lot of steps establishing and
        in the early days of the guardianship, much less
        over time

        Court – guardians must keep the court
        informed of important changes, may petition
        (ask) the court for instruction if unsure what to
        do. Keep good records.

THANK YOU!

            Heraclitus

“There is nothing permanent
except change.”

No man ever steps in the same
river twice, for it’s not the same
river and he’s not the same
man.”