Law Office of John S. Palmer Attorney at Law

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Guardianship & Due Process

Posted Sunday, May 17, 2015 by John S. Palmer

A bill was re-introduced in the Washington legislature on April 29 that would broaden the due process rights of incapacitated persons in guardianship proceedings.

HB 1407 would require the same due process and procedural rights granted after the initial petition is filed to be provided in any subsequent proceeding to modify or terminate the guardianship.

Among the rights involved are the right to counsel and the right to a jury trial. For example, RCW 11.88.045 already provides that while a guardianship petition is pending:

Alleged incapacitated individuals shall have the right to be represented by willing counsel of their choosing at any stage in guardianship proceedings. The court shall provide counsel to represent any alleged incapacitated person at public expense when either: (i) The individual is unable to afford counsel, or (ii) the expense of counsel would result in substantial hardship to the individual, or (iii) the individual does not have practical access to funds with which to pay counsel…Counsel shall be provided as soon as practicable after a petition is filed and long enough before any final hearing to allow adequate time for consultation and preparation. Absent a convincing showing in the record to the contrary, a period of less than three weeks shall be presumed by a reviewing court to be inadequate time for consultation and preparation.

RCW 11.88.045 also provides that an alleged incapacitated person is entitled to testify, present evidence, and “upon request, entitled to a jury trial on the issues of his or her alleged incapacity. The standard of proof to be applied in a contested case, whether before a jury or the court, shall be that of clear, cogent, and convincing evidence.”

HB 1407 would extend these rights to any subsequent petition to modify or terminate a guardianship, by simply adding the following language to RCW 11.88.120(4):

For a hearing on an application to terminate a guardianship or to modify the legal rights of a fully or partly incapacitated person, that person has the same due process and procedural rights that an alleged incapacitated person is afforded in an initial guardianship proceeding.

The bill has the support of the Washington State Bar Association’s Elder Law Section. A legislative analysis of the bill notes that its “impact on the courts, both in terms of time and money, could be substantial. However there is no mechanism to quantify what the total statewide cost would be.” A proposed amendment would revise RCW 11.92.180, which governs guardian fees and administrative costs for guardianships, by putting a cap on such fees and costs for DSHS clients. However, it is questionable whether the legal fees of an incapacitated person who wishes to contest or terminate a guardianship may be completely capped, as that could unconstitutionally infringe on their right to legal counsel.

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Law Office of John S. Palmer11911 NE 1st St, Ste. B204,Bellevue, WA 98005-3056