Sunday, September 26, 2010

A Nation Of Laws ! For Whom? New Bill Sucks

I picked up from this lively discussion from a Elder Abuse , ocasionally feeble attempts to legislate elder abuse protection guidelines are talked about and here are some of the comments, followed by the proposed new rules,followed by my comments;

Voiding a power of attorney should be illegal and it is absolutely unconstitutional.

The person was competent when they named the power of attorney and their agent and this is overriding that person’s wishes.

Someone should write these sorry legislators and ask them why don’t they just add that a guardianship voids an advanced directive and the persons last will and testament too.

They cannot go back in time and declare that person incapacitated.

These idiots are nothing but a bunch of crooks.

Who do we write to ?


If you're talking about the suggestions from WA State - that piece of junk was put together by the WSBA - Elder Law Committee

. They created it and sent it out in the hope of finding a sponsor. I am writing to those to whom they sent it (WA State legislators) and also to the committee itself. They didn't address the issues and they deliberately confused things by mixing minor guardianships with the adult g's. And that is saying nothing about the ease with which they dismissed poa's. You can write to:

Washington State Bar News
1325 Fourth Avenue, Suite 600
Seattle, WA 98101-2539

You can direct it to the Elder Law Committee.
If you want, forward those comments to Rep. Moeller's office. His aide told me that they want comments and that he hadn't decided if he was going to sponsor the bill. If you want to send him a note, his email address is:

I think this bill sucks! They lost me when they stated that all existing powers of atty are VOIDED when a guardian is appointed. This is just more of the same laws to abuse and exploit the victims they are targeting

BRIEF DESCRIPTION: Implementing recommendations from the Washington state bar association elder law section's executive committee report of the guardianship task force.

AN ACT Relating to the implementation of recommendations from the Washington state bar association elder law section's executive committee report of the guardianship task force; amending RCW 11.88.095, 11.88.140, 11.92.053, 11.92.040, and 11.92.050; and adding a new section to chapter 11.88 RCW.
Sec. 1. RCW 11.88.095 and 1995 c 297 s 5 are each amended to read as follows:
(1) In determining the disposition of a petition for guardianship, the court's order shall be based upon findings as to the capacities, condition, and needs of the alleged incapacitated person, and shall not be based solely upon agreements made by the parties.
(2) Every order appointing a full or limited guardian of the person or estate shall include:
(a) Findings as to the capacities, condition, and needs of the alleged incapacitated person;
(b) The amount of the bond, if any, or a bond review period;
(c) ((When the next report of the guardian is due;
(d))) The date the account or report shall be filed. The date of filing an account or report shall be within ninety days after the anniversary date of the appointment;
(d) A date for the court to review the account or report and enter its order. The court shall conduct the review within one hundred twenty days after the anniversary date of the appointment and follow the provisions of RCW 11.92.050;
(e) A directive to the clerk of court to issue letters of guardianship that expire on the date specified under (d) of this subsection for the review;
(f) Whether the guardian ad litem shall continue acting as guardian ad litem;
(((e))) (g) Whether a review hearing shall be required upon the filing of the inventory;
(((f))) (h) Whether a review hearing is required upon filing the initial personal care plan;
(i) The authority of the guardian, if any, for investment and expenditure of the ward's estate; and
(((g))) (j) Names and addresses of those persons described in RCW 11.88.090(5)(d), if any, whom the court believes should receive copies of further pleadings filed by the guardian with respect to the guardianship.
(3) If the court determines that a limited guardian should be appointed, the order shall specifically set forth the limits by either stating exceptions to the otherwise full authority of the guardian or by stating the specific authority of the guardian.
(4) In determining the disposition of a petition for appointment of a guardian or limited guardian of the estate only, the court shall consider whether the alleged incapacitated person is capable of giving informed medical consent or of making other personal decisions and, if not, whether a guardian or limited guardian of the person of the alleged incapacitated person should be appointed for that purpose.
(5) Unless otherwise ordered, any powers of attorney or durable powers of attorney shall be revoked upon appointment of a guardian or limited guardian of the estate.
If there is an existing medical power of attorney, the court must make a specific finding of fact regarding the continued validity of that medical power of attorney before appointing a guardian or limited guardian for the person.
NEW SECTION. Sec. 2. A new section is added to chapter 11.88 RCW to read as follows:
A guardian or limited guardian may not act on behalf of the incapacitated person without valid letters of guardianship. Upon appointment and filing the bond, unless the bond was dispensed with by the court, the clerk shall issue letters of guardianship to a guardian or limited guardian appointed by the court in the following form, or a substantially similar form:


Editors comments:

Lawmakers aren't stupid, they know exactly what they are doing and what group these laws will favor. I have you know that when I went to court to terminate my mother's g'ship the POA was the only thing standing in the way and it was the deciding factor in ending the g'ship, it was like a thorn in the Guardian's side and it cost that Guardian lots of missed income by being forced to terminate the guardianship because of that pesky Power Of Attorney.(POA)

Legislature to void Wills,Directives,Etc does not have to be written it is implied that G'ships already voids these! As it was explained to me by the Guardian lawyer, Wills, Directives,Etc are normally valid but when extenuating circumstances such as a challenge to these documents by a disgruntled family member, they are automatically left up to the discretion of the court to decide.

Of course POA's executed when a person is competent should stand as wills , directives and other pre planning documents, unfortunately some of you are living in the past when we were a nation of laws, look around you and stop drinking the kool aid.
Laws no longer matter.

744.3215 Rights of Persons Determined Incapacitated.--
1) A person who has been determined to be incapacitated

(2) The order appointing a guardian must be consistent with the incapacitated person's welfare and safety, must be the least restrictive appropriate alternative, and must reserve to the incapacitated person the right to make decisions in all matters commensurate with the person's ability to do so.

How much clearer does it have to be that a G'ship is the avenue of last resort as long as there are qualified family members to care for the elder yet the probate court graveyard is littered with family members whose naiveté's let them to invest their own money fighting the courts to take care of their own loved ones thinking that justice would prevail.

Ray Fernandez


Anonymous said...

Read our horror story

Anonymous said...

Ray you are doing such a good job bringing to people's attention issues that affect us all, Please keep up the good work!