[WSBARP] Releasing estate planning to guardian

[Mark Vohr]

Sorry to dominate the airwaves today - but this is an interesting issue for the professional guardian.  We have always known the guardian is not entitled to a copy of their incapacitated persons estate planning documents  - but again don't fully understand why.  One concern the guardian has is with ademption.  A guardian could unknowingly alter an incapacitated persons estate planning in the course of managing assets for care.  For instance, if the will says "house to child one, bank accounts to child two" and the guardian sells the house because the IP is not longer living there - depositing the proceeds in the bank - the guardian has unknowingly disinherited child one.

It is also interesting to note that the Jan. 1, 2022 Uniform Guardianship Act, in part, provides:

RCW 11.130.435  Powers of conservator requiring court approval.

(1) Except as otherwise ordered by the court, a conservator must give notice to
persons entitled to notice under RCW 11.130.370(4) and receive specific authorization
by the court before the conservator may exercise with respect to the conservatorship
the power to:
(a) Make a gift, except a gift of de minimis value; ...

(h) Grant a creditor priority for payment over creditors of the same or higher
class if the creditor is providing property or services used to meet the basic living and
care needs of the individual subject to conservatorship and preferential treatment
otherwise would be impermissible under RCW 11.130.555(5); and
(i) Make, modify, amend, or revoke the will of the individual subject to
conservatorship in compliance with chapter 11.12 RCW.
(2) In approving a conservator's exercise of a power listed in subsection (1) of
this section, the court shall consider primarily the decision the individual subject to
conservatorship would make if able, to the extent the decision can be ascertained.
(3) To determine under subsection (2) of this section the decision the individual
subject to conservatorship would make if able, the court shall consider the individual's
prior or current directions, preferences, opinions, values, and actions, to the extent
actually known or reasonably ascertainable by the conservator. The court also shall
consider:
(a) The financial needs of the individual subject to conservatorship and
individuals who are in fact dependent on the individual subject to conservatorship for
support, and the interests of creditors of the individual;
(b) Possible reduction of income, estate, inheritance, or other tax liabilities;
(c) Eligibility for governmental assistance;
(d) The previous pattern of giving or level of support provided by the individual;
(e) Any existing estate plan or lack of estate plan of the individual;


It would seem to me that the guardian can better serve their client if they are aware of the estate plan.

Regards,

Mark

Mark C. Vohr, Esq.
Ohana Fiduciary Corp.
Ohana Financial Services
A Washington Trust Company
Mark C. Vohr, J.D., CPG, Principal
PO Box 33710  Seattle, WA  98133
T:  (206) 782-1189 F:  (206) 782-1434
mcv at ohanafc.com      www.ohanafc.com

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Timothy Lehr
Sent: Wednesday, March 18, 2020 4:45 PM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] Releasing estate planning to guardian

All,

I had a question for the estate planning/elder law attorneys out there. Estate planning client recently had a guardian appointed by a Superior Court. We hold client's estate planning docs. The guardian has called requesting copies of client's EP docs. Is the firm allowed to release those copies to legally appointment guardian without a court order? Is there any other required info firm should request?

Thanks for the advice and stay safe,

Timothy C. Lehr
Attorney at Law
Stiles Law Inc., P.S.

p:   360.855.0131
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