Ethics Advisory Opinions

Opinion 2007-003 Notice - Change in Guardian Appointment

CERTIFIED PROFESSIONAL GUARDIAN BOARD

ETHICS ADVISORY OPINION

Date: September 15, 2008

Brief restatement of question posed: 

Who, if anyone, should be given notice when a professional guardian petitions for the appointment of a co-guardian to assist the existing guardian or to be discharged and have a standby or successor guardian appointed? 

RCW 11.88.120 

(1) At any time after establishment of a guardianship or appointment of a guardian, the court may, upon the death of the guardian or limited guardian, or, for any other reason, modify or terminate the guardianship or replace the guardian or limited guardian.

(2) Any person...may apply to the court for an order to modify or terminate a guardianship or to replace a guardian. If applicants are represented by counsel, counsel shall move for an order to show cause why the relief requested should not be granted. If applicants are not represented by counsel, they may move for an order to show cause, or they may deliver a written request to the clerk of the court. 

(3) By the next judicial day after receipt of an unrepresented person’s request to modify or terminate a guardianship order, or to replace a guardian.., the clerk shall deliver the request to the court. The court may (a) direct the clerk to schedule a hearing (b) appoint a guardian ad litem…., or (c) deny the application without scheduling a hearing, if it appears …that the application is frivolous. ..A copy of the order shall be mailed by the clerk to the applicant, to the guardian, and to any other person entitled to receive notice of proceedings in this matter. Unless within thirty days after receiving the request from the clerk the court directs otherwise, the clerk shall schedule a hearing on the request and mail notice to the guardian, the incapacitated person, the applicant, all counsel of record, and any other person entitled to notice of proceedings in the matter.    

RCW 11.88.125 

(1)The …guardian..shall file ...a notice designating a standby….guardian. Notice of the guardian’s designation of the standby guardian shall be given to the standby guardian, the incapacitated person and his or her spouse and adult children, any facility in which the incapacitated person resides, and any person entitled to special notice under RCW 11.92.150 or any person entitled to receive pleadings pursuant to RCW 11.88.095(2)(g). Such standby guardian…shall have all the powers…of the regularly appointed guardian…and in addition, shall, within a period of thirty days from the death or adjudication of incapacity of the regularly appointed guardian, file …a petition for appointment of substitute guardian or limited guardian. 

(2) Letters of guardianship shall be issued to the standby guardian…upon filing an oath and posting a bond as required by RCW 11.88.100…The oath may be filed prior to the appointed guardian or limited guardian’s death. Notice of such appointment shall be provided to the standby guardian, the incapacitated person, and any facility in which the incapacitated person resides. The provisions of RCW 11.88.100 shall apply to standby guardians and limited guardians. 

RCW 11.92.150 

….Any person interested in the estate, or in the incapacitated person, …may serve ..a written request stating the specific actions of which the applicant requests advance notice. Where the notice does not specify matters for which notice is requested, the guardian or limited guardian shall provide ….advance notice of his or her application for court approval of any action in the guardianship. 

Upon removal of the guardian under Rem. Comp. Stat Sec. 1579 (the precursor to RCW 11.88.125), notice and other statutory requirements for appointment of original guardian are unnecessary for appointment of successor. Mathieu v United States, Fid. and Guar. Co, 158 Wash. 396 (1930) ) (Construing prior statute). An incapacitated person’s petition to revoke guardianship is deemed to be a continuation of original guardianship proceedings. In re Michelson, 8 Wn. 2d 327 (1941) (Construing prior statute). Substantial compliance with the statute required. Teeters, 173 Wash. 138 (1933) (Construing prior statute). 

Each court has its own local rules that govern how motions are set and heard in that court. Consult  with counsel to determine whether local rules require any specific type of notice. 

403.10 Unless otherwise directed by the Court, the guardian shall provide copies of all material filed with the court and notice of all hearings in the guardianship to the incapacitated person. 

408 The guardian shall perform duties and discharge obligations in accordance with current Washington law governing the certification of guardian. In each guardianship, the guardian shall comply with the requirements of the court that made the appointment.  

Notice must always be provided to any “interested persons” who have requested special notice of proceedings, absent a court order to the contrary. RCW 11.92.150. Unless otherwise directed by the court, the Standards of Practice also require notice to the incapacitated person.  

If the proposed successor or co-guardian would be managing community assets for both an incapacitated person and their spouse who had not been adjudged to be incapacitated, due process may require notice to the spouse even if that spouse has not requested special notice.   If the proposed successor or co-guardian is not a certified guardian or was proposed but objected to in the initial proceedings, the court may wish to give notice to persons who might be likely to be able to provide information on the suitability of the proposed guardian or might wish to appoint a guardian ad litem to investigate the proposed guardian’s suitability.   The professional guardian should seek instructions or consult with counsel as to whether the court’s local practice and rules require additional notice or steps to be taken.