mattperkinslaw.com home Estate Planning Basics Washington Probate Guardianship Do-it-yourself Divorce Legal Information Links Consumer Complaints Directions and Map E-Mail to Matt Perkins   Personal Page		MATT PERKINS, ATTORNEY AT LAW 5516 SEVENTEENTH AVENUE NORTHWEST SEATTLE , WASHINGTON 98107 UNIFORM GUARDIANSHIP AND PROTECTIVE PROCEEDINGS ACT (1997 updated more recently) SECTION 310. WHO MAY BE GUARDIAN: PRIORITIES. (a) Subject to subsection (c), the court in appointing a guardian shall consider persons otherwise qualified in the following order of priority:    (1) a guardian, other than a temporary or emergency guardian, currently acting for the alleged incapacitated person in this State or elsewhere;    (2) a person nominated as guardian by the alleged incapacitated person, including that person’s most recent nomination made in a durable power of attorney, if at the time of the nomination the alleged incapacitated person had sufficient capacity to express a preference;    (3) an agent appointed by the alleged incapacitated person under [a durable power of attorney for health care] [the Uniform Health-Care Decisions Act];    (4) the spouse or a state registered domestic partner of the alleged incapacitated person;    (5) an adult child of the alleged incapacitated person;    (6) a parent of the alleged incapacitated person;    (7) adult brothers and sisters of the alleged incapacitated person; and    (8) an adult with whom the alleged incapacitated person has resided for more than six months before the filing of the petition. (b) With respect to persons having equal priority, the court shall select the one it considers best qualified. The court, acting in the best interest of the respondent, may decline to appoint a person having priority and appoint a person having a lower priority or no priority. The court’s decision under this section shall be supported by specific findings, which demonstrate good cause for the decision. (c) An owner, operator, or employee of [a long-term-care institution] at which the respondent is receiving care may not be appointed as guardian unless related to the alleged incapacitated person by blood, marriage, or adoption. Comment This section gives top priority to existing guardians appointed elsewhere, to the alleged incapacitated person's nominee for the position, and to the alleged incapacitated person's agent, in that order. Existing guardians are granted a first priority for two reasons. First, many of these cases will involve transfers of a guardianship from another state. To assure a smooth transition, the currently appointed guardian appointed in this state or another should have the right to the appointment at the new location. Second, other cases will involve situations where a guardianship appointment is sought despite the appointment in another place. Granting the existing guardian priority will deter such forum shopping. If the existing guardian is inappropriate for some reason, subsection (b) permits the court to pass over the existing guardian and appoint another with or without priority. While an existing guardian is generally granted a first priority for appointment, a temporary substitute and an emergency guardian are excluded from priority because of the short-term nature of their involvement. A guardian or individual nominated by the alleged incapacitated person or the agent named in the alleged incapacitated person's health care power of attorney has priority for appointment over the alleged incapacitated person's relatives. The nomination may include anyone nominated orally at the hearing, if the alleged incapacitated person has sufficient capacity at the time to express a preference. The nomination may also be made by a separate document. While it is generally good practice for an individual to nominate as the guardian the agent named in a durable power of attorney, the section grants such an agent a preference even in the absence of a specific nomination. The agent is granted a preference on the theory that the agent is the person the alleged incapacitated person would most likely prefer to act. The nomination of the agent will also make it more difficult for someone to use a guardianship to thwart the authority of the agent. To assure that the agent will be in a position to assert this priority, RCW 111.88.040 is amended to require that the agent receive notice of the proceeding. Also, until the court has acted to approve the revocation of that authority, [add RCW reference] provides that the authority of an agent for health-care decisions takes precedence over that of the guardian. Subsection (a)(8) gives an eight-level preference to a non-registered domestic partner or companion or an individual who has a close, personal relationship with the alleged incapacitated person. Note that there is no requirement that the alleged incapacitated person had resided for more than six months immediately prior to the filing of the petition, just that the requisite residency have occurred at some point in time before the petition is filed. Courts should use a reasonableness standard in applying this subsection so that priority is given to someone with whom the alleged incapacitated person has had a close, enduring relationship. For factors to consider in making this determination, see the comment to the Uniform Act Section 304, which discusses the interpretation of the phrase "an adult with whom the alleged incapacitated person has resided for more than six months before the filing of the petition" within the context of the persons required to be listed in the petition for appointment. Note that although the phrase can be interpreted quite broadly, it is intended to be descriptive of those individuals who have had an enduring relationship with the alleged incapacitated person for at least a six month period and who, because of this relationship, should be given a priority for consideration as guardian. Subsection (c) prohibits anyone affiliated with a long-term care institution at which the alleged incapacitated person is receiving care from being appointed as guardian absent a blood, marital or adoptive relationship. Strict application of this subsection is crucial to avoid a conflict of interest and to protect the ward. Each state enacting the Act needs to insert the particular term or terms used in the state for those facilities considered to be long-term care institutions. A professional guardian, including a public agency or nonprofit corporation, was specifically not given priority for appointment as guardian under this Act as those given priority are limited to individuals with whom the ward has a close relationship. The committee which drafted the Act recognized the valuable service that a professional guardian, a public agency or nonprofit corporation provides. A professional guardian can still be appointed guardian if no one else with priority is available and willing to serve or if the court, acting in the alleged incapacitated person's best interest, declines to appoint a person having priority. A public agency or nonprofit corporation is eligible to be appointed guardian as long as it can provide an active and suitable guardianship program and is not otherwise providing substantial services or assistance to the alleged incapacitated person, but is not entitled to statutory priority in appointment as guardian. This section is based on Section 2-205 of the 1982 Act (U.P.C. Section 5-305 (1982)). Back to family law preference explanation page.