Page 29 - Tacoma-Pierce County Lawyer Magazine - September October 2018

ICommon
n October of 2017, the New Yorker
published an article written by Rachel
Aviv titled “How the Elderly Lose eir Rights.” e article tells the story of a professional guardian in Nevada, April Parks, and the forcible removal of an elderly couple from their home based on an ex parte court order granting temporary guardianship to Ms. Parks. A er catching the reader’s attention with the couple’s horri c experience with the Nevada court system, the article goes on to quote Pamela Teaster, the Director for the Center for Gerontology at Virginia Tech, in describing the guardianship system as a “morass, a total mess.” As the article concludes, the reader is informed that Ms. Parks was later indicted for the and perjury.
Su ce it to say that a er reading the article one could easily determine that guardianships are not properly regulated, are regularly used as a means to exploit vulnerable populations, and are initiated far too frequently. e New Yorker article and other tantalizing headlines have created a backlash against guardianships, and have placed a greater focus nationally on the idea of less restrictive alternatives within guardianship practice. Here in Washington, however, less restrictive alternatives have always been a part of guardianship practice. RCW 11.88 and RCW 11.92 have governed guardianship practice in Washington State since
1991, and these are regularly updated in order to provide additional protections. ese statutes have strict procedural requirements, and they require attention to lesser restrictive alternatives, as described below.
Despite Washington’s leadership in this area, more recently, the conversation surrounding less restrictive alternatives is being framed in a manner that perpetuates common misconceptions about guardianship regulations in Washington. As a guardianship attorney and one who prides herself on practicing in an area that serves one of our
most vulnerable populations, I nd it imperative that our legal community— and community at large—has a basic understanding of the realities of guardianship law in our state. is article aims to address just a few of the most
Surrounding WA Guardianships
By Nicole Vaswig
common misconceptions surrounding guardianship practice in Washington State.
1. MISCONCEPTION: e Alleged Incapacitated Person (“AIP”) and family are not noti ed of the guardianship petition.
2. MISCONCEPTION: e AIP goes through the guardianship process without the protection of even the basic rights provided to those accused of a crime.
4. MISCONCEPTION: A guardian has unilateral power to liquidate assets, decide where an AIP lives, who can see the AIP, and how the AIP’s money is spent.
REALITY: Washington courts supervise guardianships. Guardians are required to provide an inventory, budget,
and accountings to the court. RCW 11.92.040. A Guardian is required
to obtain court authority to sell real property. RCW 11.92.100. A guardian must obtain court approval for payment of fees. RCW 11.92.180. A guardian must notify the court of any signi cant change in circumstance. RCW 11.92.043. An AIP retains the right to associate with persons of their choice, unless a protection
order is granted due to abuse, neglect, abandonment, or nancial exploitation. RCW 11.92.195. A guardian is not allowed to detain persons in residential placement facilities against their will. RCW 11.92.190.
REALITY: Notice of the petition must be personally served upon the AIP; sent to all known children not residing with a noti ed person, and sent to any spouse or domestic partner or the person with whom the AIP resides. RCW 11.88.040.
REALITY: e AIP is guaranteed the right to be represented by counsel. Counsel
is provided at public expense if the AIP cannot a ord counsel. e Court has authority to appoint counsel at any time if it believes the AIP’s rights are not being protected. e AIP is also guaranteed
the right to testify, present evidence, and have a jury trial. RCW 11.88.045.
3. MISCONCEPTION: An AIP can be forced into a guardianship even if the AIP has capacity to express their desires.
Our elderly population is on the rise,
and exploitation of the elderly rises with it. We have a duty to protect our most vulnerable populations, but we also
have a duty to protect an individual’s constitutional right to autonomy and liberty. Less restrictive alternatives
should be encouraged whenever possible, particularly through the use of early planning and a power of attorney. However, we should also recognize that Washington State already has signi cant protections in place that will help us avoid being the next story in the New Yorker.
Nicole Vaswig is an associate attorney at Robin H. Balsam, P.S.
in Tacoma and is the current Co-Chair of the TPCBA Guardianship Committee. Her primary areas of practice are guardianships, trusts,
Vulnerable Adult Protective actions, and TEDRA litigation.
REALITY: e Court must appoint a Guardian ad Litem (GAL) to investigate the appropriateness of a guardianship. RCW 11.88.090. e GAL is required
to meet with the AIP and investigate alternative arrangements to a guardianship. Alternatives should be implemented whenever possible and liberty and autonomy is restricted as little as possible to adequately assist the AIP. RCW 11.88.005. If the AIP objects to
the appointment of a guardian, and an agreement cannot be reached through mediation, the AIP has the right to a trial. RCW 11.88.045.
16th Annual TPCBA Guardianship Seminar
ursday, November 8th at LaQuinta Inn
September/October 2018 | PIERCE COUNTY LAWYER 29
MISCONCEPTIONS