WA Rev Code § 11.130.320 (2021)
2021 Revised Code of Washington|Title 11 - Probate and Trust Law|Chapter 11.130 - Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act.|11.130.320 - Emergency guardian for adult.

RCW 11.130.320 Emergency guardian for adult. (Effective January 1, 2022.)(1) A person interested in an adult's welfare, including the adult for whom the order is sought, may petition for appointment of an emergency guardian for the adult.(2) An emergency petition under subsection (1) of this section must state the petitioner's name, principal residence, and current street address, if different, and[,] to the extent known, the following:(a) The respondent's name, age, principal residence[,] and current street address, if different;(b) The name and address of the respondent's:(i) Spouse or domestic partner or, if the respondent has none, an adult with whom the respondent has shared household responsibilities for more than six months in the twelve-month period immediately before the filing of the emergency petition;(ii) Adult children or, if none, each parent and adult sibling of the respondent, or, if none, at least one adult nearest in kinship to the respondent who can be found with reasonable diligence; and(iii) Adult stepchildren whom the respondent actively parented during the stepchildren's minor years and with whom the respondent had an ongoing relationship in the two-year period immediately before the filing of the emergency petition;(c) The name and current address of each of the following, if applicable:(i) A person responsible for care of the respondent;(ii) Any attorney currently representing the respondent;(iii) Any representative payee appointed by the social security administration for the respondent;(iv) A guardian or conservator acting for the respondent in this state or in another jurisdiction;(v) A trustee or custodian of a trust or custodianship of which the respondent is a beneficiary;(vi) Any fiduciary for the respondent appointed by the department of veterans affairs;(vii) Any representative payee or authorized representative or protective payee;(viii) An agent designated under a power of attorney for health care in which the respondent is identified as the principal;(ix) An agent designated under a power of attorney for finances in which the respondent is identified as the principal;(x) A person nominated as guardian by the respondent;(xi) A person nominated as guardian by the respondent's parent or spouse or domestic partner in a will or other signed record;(xii) A proposed emergency guardian, and the reason the proposed emergency guardian should be selected; and(xiii) A person known to have routinely assisted the respondent with decision making during the six months immediately before the filing of the emergency petition;(d) The reason an emergency guardianship is necessary, including a specific description of:(i) The nature and extent of the emergency situation;(ii) The nature and extent of the respondent's alleged emergency need that arose because of the emergency situation;(iii) The substantial and irreparable harm to the respondent's health, safety, welfare, or rights that is likely to be prevented by the appointment of an emergency guardian;(iv) All protective arrangements or other less restrictive alternatives that have been considered or implemented to meet the respondent's alleged emergency need instead of emergency guardianship;(v) If no protective arrangements or other less restrictive alternatives have been considered or implemented instead of emergency guardianship, the reason they have not been considered or implemented; and(vi) The reason a protective arrangement or other less restrictive alternative instead of emergency guardianship is insufficient to meet the respondent's alleged emergency need;(e) The reason the petitioner believes that a basis for appointment of a guardian under RCW 11.130.265 exists;(f) Whether the petitioner intends to also seek guardianship for an adult under RCW 11.130.270;(g) The reason the petitioner believes that no other person appears to have authority and willingness to act to address the respondent's identified needs caused by the emergency circumstances;(h) The specific powers to be granted to the proposed emergency guardian and a description of how those powers will be used to meet the respondent's alleged emergency need;(i) If the respondent has property other than personal effects, a general statement of the respondent's property, with an estimate of its value, including any insurance or pension, and the source and amount of other anticipated income or receipts; and(j) Whether the respondent needs an interpreter, translator, or other form of support to communicate effectively with the court or understand court proceedings.(3) The requirements of RCW 11.130.090 apply to an emergency guardian appointed for an adult with the following exceptions for any proposed emergency guardian required to complete the training under RCW 11.130.090:(a) The proposed emergency guardian shall present evidence of the successful completion of the required training video or web cast to the court no later than the hearing on the petition for appointment of an emergency guardian for an adult; and(b) The superior court may defer the completion of the training requirement to a date no later than fourteen days after appointment if the petitioner requests an extension of time to complete the training due to emergent circumstances beyond the control of [the] petitioner.(4) On its own after a petition has been filed under RCW 11.130.270, or on petition for appointment of an emergency guardian for an adult, the court may appoint an emergency guardian for the adult if the court makes specific findings based on clear and convincing evidence that:(a) An emergency exists such that appointment of an emergency guardian is likely to prevent substantial and irreparable harm to the adult's physical health, safety, or welfare;(b) The respondent's identified needs caused by the emergency cannot be met by a protective arrangement or other less restrictive alternative instead of emergency guardianship;(c) No other person appears to have authority and willingness to act to address the respondent's identified needs caused by the emergency circumstances; and(d) There is reason to believe that a basis for appointment of a guardian under RCW 11.130.265 exists.(5) If the court acts on its own to appoint an emergency guardian after a petition has been filed under RCW 11.130.270, all requirements of this section shall be met.(6) A court order appointing an emergency guardian for an adult shall:(a) Grant only the specific powers necessary to meet the adult's identified emergency need and to prevent substantial and irreparable harm to the adult's physical health, safety, or welfare;(b) Include a specific finding that clear and convincing evidence established that an emergency exists such that appointment of an emergency guardian is likely to prevent substantial and irreparable harm to the respondent's health, safety, or welfare;(c) Include a specific finding that the identified emergency need of the respondent cannot be met by a protective arrangement instead of guardianship or other less restrictive alternative, including any relief available under chapter 74.34 RCW or use of appropriate supportive services, technological assistance, or supported decision making;(d) Include a specific finding that clear and convincing evidence established the respondent was given proper notice of the hearing on the petition;(e) State that the adult subject to emergency guardianship retains all rights the adult enjoyed prior to the emergency guardianship with the exception of the rights not retained during the period of emergency guardianship;(f) Include the date that the sixty-day period of emergency guardianship ends, and the date the emergency guardian's report, required by this section, is due to the court; and(g) Identify any person or notice party that subsequently is entitled to:(i) Notice of the rights of the adult;(ii) Notice of a change in the primary dwelling of the adult;(iii) Notice of the removal of the guardian;(iv) A copy of the emergency guardian's plan and the emergency guardian's report under this section;(v) Access to court records relating to the emergency guardianship;(vi) Notice of the death or significant change in the condition of the adult;(vii) Notice that the court has limited or modified the powers of the emergency guardian; and(viii) Notice of the removal of the emergency guardian.(7) A spouse, a domestic partner, and adult children of an adult subject to emergency guardianship are entitled to notice under this section unless the court orders otherwise based on good cause. Good cause includes the court's determination that notice would be contrary to the preferences or prior directions of the adult subject to emergency guardianship or not in the best interest of the adult subject to the emergency guardianship.(8) The duration of authority of an emergency guardian for an adult may not exceed sixty days, and the emergency guardian may exercise only the powers specified in the order of appointment. Upon a motion by the petitioner, adult subject to emergency guardianship, court visitor, or the emergency guardian, with notice served upon all applicable notice parties, the emergency guardian's authority may be extended once for not more than sixty days if the court finds that the conditions for appointment of an emergency guardian in subsection (4) of this section continue.(9) Immediately on filing of a petition for appointment of an emergency guardian for an adult, the court shall appoint an attorney to represent the respondent in the proceeding. Except as otherwise provided in subsection (10) of this section, an order appointing an emergency guardian for the respondent may not be entered unless the respondent, the respondent's attorney, and the court visitor appointed under subsection (11) of this section have received a minimum of fourteen days' notice of the date, time, and place of a hearing on the petition. A copy of the emergency petition and notice of a hearing on the petition must be served personally on the respondent, the respondent's attorney, and the court visitor not more than two court days after the petition has been filed. The notice must inform the respondent of the respondent's rights at the hearing, including the right to an attorney and to attend the hearing. The notice must include a description of the nature, purpose, and consequences of granting the emergency petition. The court shall not grant the emergency petition if notice substantially complying with this subsection is not served on the respondent.(10) The court may appoint an emergency guardian for an adult without notice to the adult and any attorney for the adult only if the court finds from an affidavit or testimony that the respondent's physical health, safety, or welfare will be substantially harmed before a hearing with notice on the appointment can be held. If the court appoints an emergency guardian without giving notice under subsection (9) of this section, the court must:(a) Give notice of the appointment not later than forty-eight hours after the appointment to:(i) The respondent;(ii) The respondent's attorney; and(iii) Any other person the court determines; and(b) Hold a hearing on the appropriateness of the appointment not later than five days after the appointment.(11) On receipt of a petition for appointment of emergency guardian for an adult, the court shall appoint a court visitor. Notice of appointment of the court visitor must be served upon the court visitor within two days of appointment. The court visitor must be an individual with training or experience in the type of abilities, limitations, and needs alleged in the emergency petition. The court, in the order appointing a court visitor, shall specify the hourly rate the [court] visitor may charge for his or her services, and shall specify the maximum amount the court visitor may charge without additional court review and approval.(a) The court visitor shall within two days of service of notice of appointment file with the court and serve, either personally or by certified mail with return receipt, the respondent or the respondent's legal counsel, the petitioner or the petitioner's legal counsel, and any notice party with a statement including the court visitor's: Training relating to the duties as a court visitor; criminal history as defined in RCW 9.94A.030 for the period covering ten years prior to the appointment; hourly rate, if compensated; contact, if any, with a party to the proceeding prior to appointment; and apparent or actual conflicts of interest.(b) A court visitor appointed under this section shall use due diligence to attempt to interview the respondent in person and, in a manner the respondent is best able to understand:(i) Explain to the respondent the substance of the emergency petition, the nature, purpose, and effect of the proceeding, the respondent's rights at the hearing on the petition, and the proposed specific powers and duties of the proposed guardian as stated in the emergency petition;(ii) Determine the respondent's views about the emergency appointment sought by the petitioner, including views about a proposed emergency guardian, the emergency guardian's proposed powers and duties, and the scope and duration of the proposed emergency guardianship; and(iii) Inform the respondent that all costs and expenses of the proceeding, including but not limited to the respondent's attorneys' fees, the appointed guardian's fees, and the appointed guardian's attorneys' fees, will be paid from the respondent's assets upon approval by the court.(c) The court visitor appointed under this section shall:(i) Interview the petitioner and proposed emergency guardian;(ii) Use due diligence to attempt to visit the respondent's present dwelling;(iii) Use due diligence to attempt to obtain information from any physician or other person known to have treated, advised, or assessed the respondent's relevant physical or mental condition; and(iv) Investigate the allegations in the emergency petition and any other matter relating to the emergency petition the court directs.(d) A court visitor appointed under this section shall file a report in a record with the court and provide a copy of the report to the respondent, petitioner, and any notice party at least seven days prior to the hearing on the emergency petition, which must include:(i) A summary of self-care and independent living tasks the respondent can manage without assistance or with existing supports, could manage with the assistance of appropriate supportive services, technological assistance, or supported decision making, and cannot manage;(ii) A recommendation regarding the appropriateness of emergency guardianship, including whether a protective arrangement instead of guardianship or other less restrictive alternative for meeting the respondent's needs is available, and if an emergency guardianship is recommended;(iii) A detailed summary of the alleged emergency and the substantial and irreparable harm to the respondent's health, safety, welfare, or rights that is likely to be prevented by the appointment of an emergency guardian;(iv) A statement as to whether the alleged emergency and the respondent's alleged needs are likely to require an extension of sixty days as authorized under this section;(v) The specific powers to be granted to the emergency guardian and how the specific powers will address the alleged emergency and the respondent's alleged need;(vi) A recommendation regarding the appropriateness of an ongoing guardianship for an adult, including whether a protective arrangement instead of guardianship or other less restrictive alternative for meeting the respondent's needs is available;(vii) A statement of the qualifications of the proposed emergency guardian and whether the respondent approves or disapproves of the proposed emergency guardian, and the reasons for such approval or disapproval;(viii) A recommendation whether a professional evaluation under RCW 11.130.290 is necessary;(ix) A statement whether the respondent is able to attend a hearing at the location court proceedings typically are held;(x) A statement whether the respondent is able to participate in a hearing which identifies any technology or other form of support that would enhance the respondent's ability to participate;(xi) A statement, as needed when the petition seeks emergency authority to change the respondent's place of dwelling, as to whether the proposed dwelling meets the respondent's needs and whether the respondent has expressed a preference as to residence; and(xii) Any other matter the court directs.(12) An emergency guardian shall:(a) Comply with the requirements of RCW 11.130.325, the requirements regarding the adult's right to association under RCW 11.130.335, and the requirements of this chapter that pertain to the rights of an adult subject to guardianship;(b) Not have authority to make decisions or take actions that a guardian for an adult is prohibited by law from having; and(c) Be subject to the same special limitations on a guardian's power that apply to a guardian for an adult.(13) Appointment of an emergency guardian under this section is not a determination that a basis exists for appointment of a guardian under RCW 11.130.265.(14) The court may remove an emergency guardian appointed under this section at any time.(15) The emergency guardian shall file a report in a record with the court and provide a copy of the report to the adult subject to emergency guardianship, and any notice party no later than forty-five days after appointment. The report shall include specific and updated information regarding the emergency alleged in the emergency petition, the adult's emergency needs, all actions and decisions by the emergency guardian, and a recommendation as to whether a guardian for an adult should be appointed. If the appointment of the emergency guardian is extended for an additional sixty days, the emergency guardian shall file a second report in a record with the court and provide a copy of the report to the adult subject to emergency guardianship, and any notice party no later than forty-five days after extension of the appointment is granted by the court, which shall include the same information required for the first report. The emergency guardian shall make any other report the court requires.(16) The court shall issue letters of emergency guardianship to the emergency guardian in compliance with RCW 11.130.040. Such letters shall be issued on an expedited basis.[ 2020 c 312 § 204; 2019 c 437 § 312.]NOTES:Effective dates—2020 c 312: See note following RCW 11.130.915.