By Beth A. McDaniel, JD, CELA

 

For political reasons, on January 1, 2021, the minor guardianship laws in Washington state significantly changed and on January 1, 2022, the adult guardianship laws in Washington state significantly changed, as Washington adopted the Uniform Law Commission’s Guardianship, Conservatorship, and Other Protective Arrangements Act. To date, only Maine and Washington have adopted this act.

 

Although we are approaching the end of 2022, I can safely say that the judiciary and lawyers are still learning what this new set of laws entails. Under the new laws, there are more notice requirements, a new vocabulary, new record keeping requirements, and increased requirements to demonstrate that other alternatives to guardianship (for medical decision making) and conservatorship (for financial decision making) have first been considered.

 

One thing that is apparent is that this new law has made Washington counties less uniform than ever in their interpretations of the new laws. As a result, guardianship lawyers are now choosing to concentrate their practices in only one or two counties. 

 

Another result of the new law is that family guardians who have never used an attorney are now seeking legal representation as the new laws too confusing for family guardians to navigate on their own.

 

I recently decided that, for now, my office is not going to accept any new guardianship/conservatorship cases (aside from minor conservatorships), except for those already on the calendar, so that we can focus on our existing case load. We can, however, provide a Snohomish, King, Pierce, or Skagit County referral list and are always happy to be a resource.

 

As always, the key is to avoid guardianship/ conservatorship whenever possible. The best way is to have a Durable Power of Attorney that is regularly updated (at least every four to five years) by a lawyer familiar with elder law issues. Generally speaking, the cases that are most likely to end up in a guardianship/conservatorship proceeding are those in which there was never a Durable Power of Attorney; there was a Durable Power of Attorney where the only agent named can no longer serve; or there is a Durable Power of Attorney that was executed when the individual (“principal”) was already starting to lose their faculties. When this happens, the wrong agent, or combination of co-agents, may get appointed, an inadequate power of attorney may be executed, or an adequate power of attorney may be improperly executed.

 

Whenever possible, I try to use the Washington’s Durable Power of Attorney to augment an existing power of attorney (for example, to add another agent) or to validate a Durable Power of Attorney when there was an attempt to invalidate it with an inappropriate Durable Power of Attorney.

 

This process requires a court petition, appointment of a guardian ad litem, and entry of an order giving the requested relief.

 

I am also becoming a bigger proponent of revocable living trusts. If a neighbor, friend, or family member who would have not been the elder’s first choice convinces the principal to appoint them as agent under a power of attorney, that agent would not have access to the trust assets, which can greatly mitigate the possibility of financial exploitation – which is a common reason to instigate guardianship/conservatorship proceedings.

 

If a guardianship/conservatorship were to become necessary due to a medical diagnosis, such as frontal lobe dementia, where the individual can become angry and distrustful, a revocable living trust can limit the scope of the conservatorship. If there is an appropriate trustee, the assets of the revocable living trust would not become part of the court-supervised conservatorship proceedings.

 

I realize that developmentally disabled individuals typically do not have an opportunity to execute a durable power of attorney or trust. For these cases, I recommend a full guardianship and limited conservatorship. Also, I recommend that the conservatorship be limited so that the representative payee of the SSI (who typically is also the conservator) does not have to account for the SSI to the Court. This can significantly reduce legal fees. It is also possible to initially request a triennial reporting period, which will also save the legal fees imposed by annual reporting.

 

Do you have questions about conservatorship or guardianship in Washington? If so, please contact our client care coordinator, Margo Passeau, at (425) 296-3121 or margo@bethmcdaniel.com and she will get you the information you need

 

First Published: November 2022