[WSBAPT] Off-topic Assistance: Guardianship of Incapacitated Adult w/Developmental Disability

[Marcus Fry]

It appears that your clients’ letters are up for reissuance?  If so, assuming the IP doesn’t have any money, I would set a hearing to renew the letters of guardianship disclosing lack of money for IP and issues with formal proceedings.  If the judge wants to reevaluate capacity, I would tell the Court that a GAL needs to be appointed at county expense (happens in the majority of counties) to investigate the continued appropriateness of the guardianship and provide recommendations whether the IP should attend the hearing or not on the reissuance of letters.  This way you avoid the expense of the GAL and also potentially avoid the issue of the IP appearing at court if it will impact his mental health.

Marcus J. Fry
Lyon, Weigand & Gustafson, P.S.

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of David Faber
Sent: Monday, June 06, 2016 3:21 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Off-topic Assistance: Guardianship of Incapacitated Adult w/Developmental Disability

Marcus,

Thank you for your reply. Unfortunately, while your position makes sense re: keeping the originating county, I have already had a motion to change venue approved and the venue has already been transferred. The receiving venue is not asking for a hearing to confirm the change of venue but will, according to the clerk, likely require a hearing to reconfirm the guardianship because "the judge wants to put his eyes on the incapacitated person and have an opportunity to ask them questions."

Any further thoughts given that venue has already been changed?

Best,
David J. Faber
Faber Feinson PLLC
210 Polk Street, Suite 1
Port Townsend, WA 98368
(360) 379-4110

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On Mon, Jun 6, 2016 at 3:12 PM, Marcus Fry <mfry at lyon-law.com<mailto:mfry at lyon-law.com>> wrote:
Don’t change counties.  I wouldn’t.  Is there a bit of headache with sending paperwork to another county? Yes, but it appears that a new headache is being created.  If you want to pursue changing counties, why don’t you have the transferring county authorize change of venue.  I have never heard of the “receiving court” having a hearing to accept the change of venue. Your judge may be confusing your case with a transfer of a guardianship from out of state.  Further, I would not prepare an ex parte order for the receiving court to sign off on.  There isn’t a need to do that.  But again, given the current situation, I would leave the case in the other county.

Marcus J. Fry
Lyon, Weigand & Gustafson, P.S.
P.O. Box 1689
Yakima, Washington  98907
Telephone:  (509) 248-7220<tel:%28509%29%20248-7220>
Facsimile:  (509) 575-1883<tel:%28509%29%20575-1883>

Confidentiality: This e-mail transmission may contain information which is protected by attorney-client, work product and/or other privileges.  If you are not the intended recipient, you are hereby notified that any disclosure, or taking of any action in reliance on the contents, is strictly prohibited.  If you have received this transmission in error, please contact us immediately and return the e-mail to us by choosing Reply (or the corresponding function on your e-mail system) and then deleting the e-mail.

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>] On Behalf Of David Faber
Sent: Monday, June 06, 2016 2:57 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Off-topic Assistance: Guardianship of Incapacitated Adult w/Developmental Disability

I am working with a married couple who has a lay guardianship over their autistic son. When I agreed to take this case, I did so on two bases: (1) I have a personal relationship with the clients and they specifically wanted me to help them and (2) they already have an established guardianship in another county, so I figured that renewing the guardianship would be as easy as changing venue to Jefferson County and asking for an ex parte order from the judge reaffirming the guardianship/letters (which is all that would be required had the guardianship already existed in Jefferson County). Had that been the extent of it, I would be quite comfortable right now. Unfortunately, our local judge apparently likes to hold a full-blown hearing on an adult guardianship subject to a change of venue, even where the guardianship has already been proven in another Washington court. The guardians paid to have a guardian ad litem appointed the first time, but they're trying to avoid unnecessary costs at this point in time so they don't want to do it again. The problem being that the incapacitated person reacts quite negatively to discussion of his incapacity, which suggests that hauling him into court would be unproductive and/or potentially disastrous.

Is there a rule or case law that I haven't seen that states a guardianship subject to a change of venue has to have a full-blown hearing before it is reaffirmed? Does anyone have any bright ideas of how to (a) save the clients the cash of hiring a GAL and (b) prevent us from having to have a full hearing that might cause more problems than it solves?

Thank you.

Best,
David J. Faber
Faber Feinson PLLC
210 Polk Street, Suite 1
Port Townsend, WA 98368
(360) 379-4110<tel:%28360%29%20379-4110>

*** NOTICE: ATTORNEY CLIENT COMMUNICATION - PRIVILEGED & CONFIDENTIAL.  This communication may contain privileged or other confidential information. If you are not the intended recipient, or believe that you have received this communication in error, please do not print, copy, retransmit, disseminate, or otherwise use the information. Also, please indicate to the sender that you have received this communication in error, and destroy the copy you received.***

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