Washington State 60 day session begains with guardianship refom bill sponsored in both the house and the senate. Both are listed below...with what I like in Green...and what I don't like in Red.
HOUSE BILL 2401
State of Washington 64th Legislature 2016 Regular Session
By Representatives Kochmar, Griffey, Wylie, Appleton, Walsh, and Ryu
AN ACT Relating to court orders for visitation with adults; adding a new chapter to Title 11 RCW; creating a new section; and prescribing penalties. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON: NEW SECTION.
Sec. 1. The legislature finds that every adult in this state has the right to visit with, and receive mail, telephone, and electronic communication from, whomever he or she so chooses, unless a court has specifically ordered otherwise. The legislature intends to establish a procedure to safeguard adults' rights to enjoy visitation in situations in which visitation is desired by and in the best interest of the adult, but is being prevented.
NEW SECTION. Sec. 2. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
(1) "Proposed visitee" means an adult with whom visitation is sought. (Notice this doesn't say person under guardianship. This bill does not required that guardianship be established for a motion to be filed.)
(2) "Relatives" include the proposed visitee's spouse or registered domestic partner, parents, children, current or former stepchildren, and siblings.
(3) "Visitation" means any in-person meeting, or any telephonic, mail, or electronic communication between a proposed visitee and the petitioner.
NEW SECTION. Sec. 3.
(1) Any relative, neighbor, or close 5 friend of a proposed visitee may petition for visitation with the proposed visitee. (Notice that anyone can file a motion for visitation, not just a relative.)
(2) A petitioner may not file a petition for visitation with the same proposed visitee more than once, unless:
(a) At least one year has elapsed since the previous petition was filed; or
b) The petitioner shows that there has been a substantial change in circumstances since the previous petition or that other good cause exists for allowing the petition.
(3) A petition for visitation under this chapter must be filed in the superior court of either the county in which the proposed visitee resides or the county in which the proposed visitee is temporarily living.
(4)(a) The petition must describe:
(i) The nature of the relationship between the petitioner and the proposed visitee;
(ii) The nature of the visitation that is being requested;
(iii) Facts supporting the petitioner's belief that the proposed visitee would or does desire visitation with the petitioner; and (iv) Facts supporting the necessity of a visitation order in light of previous unsuccessful efforts to obtain visitation with the
proposed visitee or other indications that visitation will be prevented in the future.
(b) The petition must additionally contain the following information, to the extent known by the petitioner:
(i) The condition of the proposed visitee's health;
(ii) Any deficit in the proposed visitee's mental functioning and that deficit's impact on the proposed visitee's ability to respond knowingly and intelligently to queries about the requested visitation;
(iii) The names and addresses of the proposed visitee's relatives; and
(iv) The name and address of the proposed visitee's guardian or limited guardian, if any.
(5) If, based on the petition, the court determines that there is a reasonable basis to believe that the proposed visitee would or does desire visitation, and that there is a risk that visitation between the petitioner and the proposed visitee would be prevented absent a court order, the court shall set a hearing no later than sixty days from the filing of the petition and notify the petitioner.
NEW SECTION. Sec. 4. As soon as possible, but not more than five days after the court sets a hearing under section of this act, the petitioner shall provide notice of the time and place of the hearing and a copy of the petition to: (1) The proposed visitee and the proposed visitee's attorney, if any, by personal service; and
(2) The proposed visitee's guardian or limited guardian, if any, and any relatives named in the petition, by mail at the addresses stated in the petition.
NEW SECTION. Sec. 5. (1) Prior to the hearing, the court shall assign a guardian ad litem from the registry described in RCW 11.88.090 to conduct an investigation.
(2) In conducting the investigation, the guardian ad litem must complete the following steps:
(a) Conduct interviews of the following persons:
(i) The proposed visitee;
(ii) The petitioner;
(iii) The proposed visitee's relatives;
(iv) The proposed visitee's guardian or limited guardian, if any;
To the extent practical, neighbors; and
(vi) If known, close friends of the proposed visitee;
(b) Inform the proposed visitee of the contents of the petition;
(c) Determine whether the proposed visitee has the capacity to consent to the requested visitation;
(d) Determine whether the proposed visitee desires the proposed
33 (e) Determine whether the proposed visitee has retained an
attorney to represent him or her in the proceeding under this chapter
or if the proposed visitee plans to retain an attorney for that purpose.
(3) At least fifteen days before the hearing, the guardian ad
38 litem must file a written report with the court detailing the information gathered in subsection (2) of this section and must mail a copy of the report to the following persons:
3 (a) The petitioner and the petitioner's attorney, if any;
(b) The proposed visitee and the proposed visitee's attorney, if any;
(c) The proposed visitee's guardian or limited guardian, if any;
(d) All relatives of the proposed visitee, unless the court determines that providing the report to any of these persons will result in harm to the proposed visitee; and
(e) Any other person identified by the court.
(4) The guardian ad litem's report is a confidential document
that is disclosable only to the parties, attorneys for the parties,
and persons entitled to a copy of the report under subsection (3) of
this section, and is exempt from public disclosure under chapter
(5) If a guardian ad litem has performed an investigation of the proposed visitee within the preceding twelve months, the court may order, upon good cause, that another investigation is not necessary or that a more limited investigation may be performed.
(6) The entire or partial cost of the services of the guardian ad litem must be assessed to the petitioner unless such assessment would impose a substantial hardship on the petitioner.
NEW SECTION. Sec. 6. (1) Following the hearing:
(a) If the court determines that the proposed visitee possesses sufficient capacity to make a knowing and intelligent visitation decision and that the proposed visitee desires visitation with the petitioner, the court must grant reasonable visitation.
(b) If the court determines that the proposed visitee does not possess sufficient capacity to make a knowing and intelligent visitation decision:
(i) The court must grant reasonable visitation if the court determines that the proposed visitee would desire visitation and visitation is in the best interest of the proposed visitee; and
(ii) The court must not enter a visitation order if the court determines that the proposed visitee would not desire visitation or that visitation is not in the best interest of the proposed visitee. (A very good section that needs to be in every visitation bill)
(2) In determining the proposed visitee's desire for visitation with the petitioner under subsection (1)(b) of this section, the court may consider:
(a) The history of the relationship between the proposed visitee
and the petitioner;
(b) Any statements made by the proposed visitee regarding his or
her desire to visit with the petitioner;
(c) Any power of attorney or advance planning document that expresses an option regarding visitation with the petitioner; and (
(d) The report of the guardian ad litem.
(3) If the court grants visitation, the court may include in the order reasonable time, place, and manner requirements regarding visitation.
NEW SECTION. Sec. 7. A petition for modification or termination of the order may be filed in the court with jurisdiction over the initial petition. Disposition of a petition for modification or termination shall follow the same procedure as an initial petition under this chapter.
NEW SECTION. Sec. 8. (1) A person who is not a party to a visitation order entered under this chapter and who knowingly interferes with the order must be assessed a civil penalty of:
(a) Not less than one hundred dollars and not more than three
hundred dollars, for a first violation;
(b) Not less than five hundred dollars and not more than eight hundred dollars, for a second violation; and
(c) Not less than one thousand dollars and not more than one thousand five hundred dollars, for a third or subsequent violation. ( I like this, a bill that includes penalties.)
(2) The court may not waive, reduce, or suspend the minimum monetary penalty imposed under subsection (1) of this section.
NEW SECTION. Sec. 9. A determination by a court regarding capacity of a proposed visitee under this chapter shall not be cited as evidence in any other legal proceeding.
30 NEW SECTION. Sec. 10. Sections 2 through 9 of this act constitute a new chapter in Title 11 RCW.
SENATE BILL 6235
State of Washington 64th Legislature 2016 Regular Session
By Senator Padden
AN ACT Relating to guardianships in respect to an incapacitated person's right of communication, visitation, and interaction with others; and adding new sections to chapter 11.88 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1. A new section is added to chapter 11.88 RCW to read as follows:
(1)(a) Unless specifically authorized by court order, a guardian may not restrict an incapacitated person's right of communication, visitation, or interaction with other persons, including the right to receive visitors, telephone calls, or personal mail.
(Please note, this bill only pertains to people who are under guardianship.)
(b) If an incapacitated person is unable to express consent to communication, visitation, or interaction with a person due to a physical or mental condition, then consent of the incapacitated person may be presumed based on the incapacitated person's prior
relationship history with the person.
(2) A guardian may, for good cause shown, move the court to have restrictions placed on a person's ability to communicate, visit, or interact with an incapacitated person in accordance with subsection of this section. (I like that it is the guardian who must file to stop visitation...not a person who has to prove they are worthy.)
Good cause includes:
(a) Whether any protective orders have been issued to protect the incapacitated person from the person seeking access to the incapacitated person;3
(b) Whether abuse, neglect, or financial exploitation of the
incapacitated person by the person seeking access to the
incapacitated person has occurred or is likely to occur;
(c) Documented wishes of the incapacitated person to reject communication, visitation, or interaction with specific persons; and (d) Any other factors deemed relevant by the court.
(3)(a) A court may order restrictions placed on communications, visitations, or interactions a person may have with an incapacitated person upon a showing of good cause by the guardian.
b) In determining whether to issue an order in accordance with
a) of this subsection (3), the following factors must be considered by the court:
(i) Whether any protective orders have been issued to protect the incapacitated person from the person seeking access to the incapacitated person;
(ii) Whether the person has been charged with abuse, neglect, or financial exploitation of the incapacitated person;
(iii) Whether the incapacitated person expresses a desire to communicate, visit, or interact with the person;
(iv) If the incapacitated person is unable to communicate, whether a properly executed living will, durable power of attorney, or advance directive contains a preference by the incapacitated person with regard to the person's communication, visitation, or interaction with the incapacitated person; and
(v) Any other factors deemed relevant by the court.(I hate this one. This one lets the judges do what ever they want and makes the rest of the bill useless.)
(c) Prior to issuing an order pursuant to this subsection (3), the court must consider the following restrictions in the order listed:
(i) Placing reasonable time, manner, or place restrictions on communication, visitation, or interaction between the incapacitated person and another person based on the history between the incapacitated person and the person or the incapacitated person's
wishes, or both;
(ii) Requiring that communication, visitation, or interaction between the incapacitated person and another person be supervised; or
(iii) Denying communication, visitation, or interaction between the incapacitated person and another person; provided, that unless the court finds that the person poses a threat to the incapacitated person, supervised communication, visitation, or interaction under
(c)(ii) of this subsection (3) must be ordered prior to the denial of any communication, visitation, or interaction.
(4)(a) If any interested person, including the incapacitated person, reasonably believes that subsection (1) of this section has been violated or an order issued pursuant to subsection (3) of this section has been violated, then such person may move the court to:
i) Require the guardian to grant a person access to the incapacitated person;
(ii) Restrict, or further restrict, a person's access to the incapacitated person;12
(iii) Modify the guardian's duties; or
(iv) Discharge and replace the guardian pursuant to RCW 126.96.36.199
(b) Notwithstanding actions available to the court pursuant to (a) of this subsection (4), a guardian who is found to be knowingly isolating an incapacitated person and who has violated subsection (1) of this section or has violated an order issued pursuant to subsection (3) of this section is subject to discharge and replacement pursuant to RCW 188.8.131.52 (A judge already can replace a guardian at any time. However it never happens.)
(5)(a) Except as provided in (b) of this subsection, the court must schedule a hearing on a motion filed pursuant to subsection (2) or (4) of this section no later than sixty days after the date the motion is filed. The court may, in its discretion, order mediation to
be conducted by the parties and the incapacitated person prior to the hearing.(How does a judge order mediation with out a hearing? Maybe they do it different in Washington state.) If mediation results in agreement of the parties and the incapacitated person with regard to communication, visitation, or interaction with the incapacitated person, the agreement must be approved and memorialized in an order by the court. (b)(i) If the motion states that the incapacitated person's health is in significant decline or that the incapacitated person's death may be imminent, the court must conduct an emergency hearing as soon as practicable, but no later than ten days after the motion is filed.
(ii) When a scheduling order is issued upon a motion filed pursuant to (b)(i) of this subsection (5), the court must also order that supervised communication, visitation, or interaction with the incapacitated person be granted during the period prior to the
(c) Notice of the hearing, a copy of the motion, and a copy of any order issued pursuant to (b)(ii) of this subsection (5), if applicable, must be personally served upon the incapacitated person and any person against whom the motion is filed, and nothing in this section may affect the incapacitated person's right to appear and be heard in the proceedings.
6)(a) The court may award the prevailing party in any action brought under this section court costs and reasonable attorneys' fees; provided, however, an award of court costs or attorneys' fees may not be paid out of the incapacitated person's estate.
(b) The court, upon motion or upon its own initiative, must impose upon a guardian who is found to be knowingly isolating an incapacitated person and who has violated subsection (1) of this section or who has violated an order issued pursuant to subsection
(3) of this section an appropriate sanction, including an order to pay court costs and reasonable attorneys' fees of the other party or parties. However, no sanction may be paid out of the incapacitated person's estate.(I like this one!)
NEW SECTION. Sec. 2. A new section is added to chapter 11.88
RCW to read as follows:
(1) A guardian must promptly notify an incapacitated person's closest relatives and any person designated by the incapacitated person to be notified, along with the appropriate contact information and upon the incapacitated person's knowledge of such circumstance and information, in the event:
(a) The incapacitated person's residence has changed;
(b) The incapacitated person is staying at a location other than the incapacitated person's residence;
(c) The incapacitated person is admitted to a medical facility for:
(i) Emergency care in response to a life-threatening injury or medical condition; or
(ii) Acute care; or
(d) The incapacitated person dies. However, notification of the incapacitated persons death must be made in person or by telephone.
(2)(a) A guardian is not required to provide notice in accordance
with subsection (1) of this section if:
(i) A person who is entitled to notice under subsection (1) of this section informs the guardian in writing that the person does not wish to receive such notice; or
(ii) The incapacitated person or a court order has expressly prohibited the guardian from providing notice to the person.
(b) A guardian may not provide contact information in accordance with subsection (1) of this section if an order of protection or restraining order has been issued against the person on behalf of the incapacitated person.
Opps...just found out there is another guardianshp refrom bill out of Washington
HOUSE BILL 2402
State of Washington 64th Legislature 2016 Regular Session
By Representatives Kochmar, Griffey, Wylie, Appleton, Walsh, Short,
AN ACT Relating to communication with relatives of incapacitated
persons; and amending RCW 11.92.043.2
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1. RCW 11.92.043 and 2011 c 329 s 3 are each amended to
read as follows:
It shall be the duty of the guardian or limited guardian of the
(1) To file within three months after appointment a personal care
plan for the incapacitated person which shall include (a) an assessment of the incapacitated person's physical, mental, and emotional needs and of such person's ability to perform or assist in activities of daily living, and (b) the guardian's specific plan for meeting the identified and emerging personal care needs of the incapacitated person.
(2) To file annually or, where a guardian of the estate has been appointed, at the time an account is required to be filed under RCW 11.92.040, a report on the status of the incapacitated person, which shall include:
(a) The address and name of the incapacitated person and all residential changes during the period;
(b) The services or programs which the incapacitated person
(c) The medical status of the incapacitated person;
(d) The mental status of the incapacitated person;
(e) Changes in the functional abilities of the incapacitated
(f) Activities of the guardian for the period;
(g) Any recommended changes in the scope of the authority of the guardian;
(h) The identity of any professionals who have assisted the incapacitated person during the period;
(i)(i) Evidence of the guardian or limited guardian's successful completion of any standardized training video or web cast for guardians or limited guardians made available by the administrative office of the courts and the superior court when the guardian or limited guardian:
(A) Was appointed prior to July 22, 2011; (B) is not a certified professional guardian or financial institution authorized under RCW 11.88.020; and (C) has not previously completed the requirements of RCW 11.88.020(3). The training video or web cast must be provided at no cost to the guardian or limited guardian.
(ii) The superior court may, upon
(A) petition by the guardian or limited guardian; or
(B) any other method as provided by local court rule:
(I) For good cause, waive this requirement for guardians appointed prior to July 22, 2011. Good cause shall require evidence that the guardian already possesses the requisite knowledge to serve as a guardian without completing the training. When determining whether there is good cause to waive the training requirement, the court shall consider, among other facts, the length of time the
guardian has been serving the incapacitated person; whether the guardian has timely filed all required reports with the court; whether the guardian is monitored by other state or local agencies; and whether there have been any allegations of abuse, neglect, or a breach of fiduciary duty against the guardian; or
(II) Extend the time period for completion of the training requirement for ninety days; and
(j) Evidence of the guardian or limited guardian's successful completion of any additional or updated training video or web cast offered by the administrative office of the courts and the superior court as is required at the discretion of the superior court unless the guardian or limited guardian is a certified professional guardian or financial institution authorized under RCW 11.88.020. The training
3 video or web cast must be provided at no cost to the guardian or
(3) To report to the court within thirty days any substantial change in the incapacitated person's condition, or any changes in residence of the incapacitated person.
(4) To inform any relatives entitled to notice of proceedings under RCW 11.92.150 as soon as reasonably possible if the incapacitated person dies or has been hospitalized for three days or more in an acute care hospital, as licensed under chapter 70.41 RCW, and, in the case of death, of any funeral arrangements and the location of the incapacitated person's final resting place.
(5) Consistent with the powers granted by the court, to care for and maintain the incapacitated person in the setting least restrictive to the incapacitated person's freedom and appropriate to the incapacitated person's personal care needs, assert the incapacitated person's rights and best interests, and if the incapacitated person is a minor or where otherwise appropriate, to see that the incapacitated person receives appropriate training and education and that the incapacitated person has the opportunity to learn a trade, occupation, or profession.
(((5))) (6) Consistent with RCW 7.70.065, to provide timely, informed consent for health care of the incapacitated person, except in the case of a limited guardian where such power is not expressly provided for in the order of appointment or subsequent modifying order as provided in RCW 11.88.125 as now or hereafter amended, the standby guardian or standby limited guardian may provide timely,
informed consent to necessary medical procedures if the guardian or
limited guardian cannot be located within four hours after the need
for such consent arises. No guardian, limited guardian, or standby
guardian may involuntarily commit for mental health treatment,
observation, or evaluation an alleged incapacitated person who is
unable or unwilling to give informed consent to such commitment
unless the procedures for involuntary commitment set forth in chapter
36 71.05 or 72.23 RCW are followed. Nothing in this section shall be
construed to allow a guardian, limited guardian, or standby guardian
to consent to:
(a) Therapy or other procedure which induces convulsion;
(b) Surgery solely for the purpose of psychosurgery;
(c) Other psychiatric or mental health procedures that restrict physical freedom of movement, or the rights set forth in RCW 71.05.217.3
A guardian, limited guardian, or standby guardian who believes these procedures are necessary for the proper care and maintenance of the incapacitated person shall petition the court for an order unless the court has previously approved the procedure within the past thirty days. The court may order the procedure only after an attorney is appointed in accordance with RCW 11.88.045 if no attorney has previously appeared, notice is given, and a hearing is held in
accordance with RCW 11.88.040.
PRESS RELEASE June 2015
Austin Texas June 25, 2015 - As the new laws go into effect private professional guardianship providers across the state of Texas are warned to comply with the new laws or face possible civil liability.
The 9 new laws were constructed in collaboration with stakeholders and are only the start of a long over due reform initiative spearheaded by Senator Judith Zaffirini of Laredo to protect the most vulnerable of Texas Citizens.
Working with Representatives John Smithee, Richard Raymond, Senfronia Thompson and Joe Moody, Senator Zaffirini authored the following Senate bills (SB) and sponsored the House bills (HB):
SB 1369 by Zaffirini and Smithee requires all courts to report monthly their appointees by name, hourly rate, amount paid and annual amount paid.
SB 1876 by Zaffirini and Smithee requires judges to use a rotation system for appointments.
SB 1881 by Zaffirini and Raymond codifies for the first time in Texas history supported decision making agreements, a less restrictive alternative to guardianship.
HB 39 by Smithee and Zaffirini expands on the alternatives to guardianship that have been under utilized thus far in Texas probate courts.
SB 1882 by Zaffirini and Thompson for the first time in Texas history codifies protections that persons under guardianship have unless restricted by the court.
HB 2665 Moody and Zaffirini is a visitation bill that was needed to allow family members access to their loved ones held under guardianship.
HB 3424 Smithee and Zaffirini is a study of the benefits and feasibility of establishing a statewide guardianship database.
SB 306 by Zaffirini and Raymond requires additional data is made available regarding the Commission on Judicial Conduct.
HB 1438 by Thompson and Zaffirini covers many topics as it amends the estate code and the role of presiding probate judges.
As these new laws go into effect both the presenters at this month’s conferences of the State Bar Association and at the Texas Guardianship Association highlighted the new restrictions and requirements. A point was made to the at the State Bar Association meeting that the judges listening need to get rid of their “super-secret” Ad Litem appoint lists. At the Texas Guardianship Association summit there was a whole morning devoted to educating the paid guardians on how to avoid liability.
There is a growing awareness in Texas, and across the nation that with baby boomers becoming senior citizens, new options and ideas are needed to meet what will be an ever increasing burden on our probate courts. Senator Judith Zaffirini is leading the charge to find solutions that do not burden the taxpayer and yet have humanity and common sense at their core. Texas should be proud to have such a fine lawmaker in Austin.