Tenth Annual Probate Administration

Transcription

1 Tenth Annual Probate Administration November 13, 2014 Chapter 13 3:45-4:00pm Probate GAL Michael J. Longyear, Reed Longyear Malnati & Ahrens PLLC PowerPoint distributed at the program and also available for download in electronic format: 1. The Role of a Probate Guardian ad Litem There are no additional materials for this chapter

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3 The Role of a Probate Guardian ad Litem November 13, 2014 Michael Longyear, Attorney at Law Reed Longyear Malnati & Ahrens, PLLC Discretionary Appointment At any time in a probate proceeding, the court may appoint a probate guardian ad litem (PGAL) Represent the interest of an alleged incapacitated person, or an incapacitated person, including minors A PGAL may represent several persons or interests as long as no conflict of interest is present. Form Order Appointing Probate Guardian Ad Litem Mandatory Appointment Appointment of a GAL/PGAL to represent the interests of an alleged incapacitated person for whom no guardian has been appointed is mandatory for hearings on any of the matters listed in RCW A.030; see RCW A.030 5(g), includes GAL as a party. If a minor or an adjudicated incapacitated person is a party to litigation a GAL must be appointed. 1

4 Statutory & Court Rule References Washington Court Rule SPR 98.16W Settlement of claims of minors and incapacitated persons Statutory References Judicial or Non judicial Dispute Resolution: RCW : Representation of incapacitated person by guardian ad litem or limited guardian; RCW11.96A.180: Judgment on the issues, as well as for costs, may be entered and enforced by execution or otherwise by the court as in civil actions. Litigation: Statutory References RCW : Guardian appointment for infant RCW : Guardian appointment for incapacitated person 2

5 SPR 98.16W ESTATES GUARDIANSHIP SETTLEMENT OF CLAIMS OF MINORS AND INCAPACITATED PERSONS (a) Approval of Settlement Required. In every settlement of a claim, whether or not filed in court, involving the beneficial interest of an unemancipated minor or a person determined to be disabled or incapacitated under RCW 11.88, the court shall determine the adequacy of the proposed settlement on behalf of such affected person and reject or approve it. SPR 98.16W cont. If a suit for recovery on behalf of the affected person has been previously maintained, then the petition shall be filed in that county, or if no such suit exists, then in the county where the affected person resides, unless either court orders otherwise. 3

6 RCW RCW : Court may appoint a GAL at any stage of the proceeding in its discretion when that person has no legally appointed guardian or limited guardian. If there is an alleged incapacitated person as defined in RCW interested in the estate who has no legally appointed guardian or limited guardian, the court may appoint a GAL Guardian ad Litem must be appointed under RCW as follows: (a) Adjudication of testacy or intestacy and heirship. RCW ; (b) Award to surviving spouse or children. RCW ; (c) Final report of personal representative. RCW Hypothetical: If an heir or beneficiary is disabled, should the court appoint a guardian ad litem? 4

7 Statutory and Case Law References RCW : When an infant is a party he or she shall appear by guardian, or if he or she has no guardian, or in the opinion of the court the guardian is an improper person, the court shall appoint one to act. RCW : When an incapacitated person is a party to an action in the superior courts he or she shall appear by guardian, or if he or she has no guardian, or in the opinion of the court the guardian is an improper person, the court shall appoint one to act as guardian ad litem. Statutory and Case Law References RCW 11.96A.160: The court, upon its own motion or upon request of one or more of the parties, at any stage of a judicial proceeding or at any time in a nonjudicial resolution procedure, may appoint a guardian ad litem to represent the interests of a minor, incapacitated, unborn, or unascertained person, person whose identity or address is unknown, or a designated class of persons who are not ascertained or are not in being. If not precluded by a conflict of interest, a guardian ad litem may be appointed to represent several persons or interests. Duties of Guardian ad Litem (GAL) and/or Probate GAL Represents the interests of a minor or an alleged incapacitated person in all matters before the court Shall prepare, serve and file a verified written report at least seven days prior to any hearing on a petition. Notice must be given to all parties of record. 5

8 Attendance at Hearings The GAL/PGAL shall attend the hearing upon any petition in matters listed in RCW 11.96A.030 and RCW What is the scope of authority of a GAL/PGAL? Does the GAL/PGAL need court authorization before signing a proposed agreed order or taking other actions in the probate administration? Termination of Duties Shall cease upon Entry of an order resolving the controversy in the matter for which a special limited purpose appointment was made OR Entry of a final order, in the case of appointment as continuous GAL/PGAL If the incapacitated person attains competency 6

9 Termination of Duties If the incapacitated person attains competency or if the minor attains the age of majority, and has not otherwise been determined to lack capacity. The GAL/PGAL can petition to be discharged based on the change in circumstances. Compensation The GAL/PGAL shall comply with SPR 98.12W in applying to the court for reasonable compensation, authorized under RCW Compensation of Guardians, Limited Guardians, and Guardian ad Litems RCW (10) RCW RCW (10) Statute requires that the fee be charged to the alleged incapacitated person unless the court finds that such payment would result in substantial hardship upon such person, in which case the county shall be responsible for such costs. 7

10 Statutory and Case Law References RCW 11.96A.150 Either the superior court or any court on an appeal may, in its discretion, order costs, including reasonable attorneys' fees, to be awarded to any party. Statutory and Case Law References RCW (10): The guardian ad litem shall receive a fee determined by the court. RCW : A guardian or limited guardian shall be allowed such compensation for his or her services as guardian or limited guardian as the court shall deem just and reasonable Case Law References In re Estate of Tolson, 89 Wn.App. 21, 947 P2d 1242 (1997) Guardian ad litem fees may not be awarded out of the assets of a testamentary estate. 8

11 Case Law References Anderson v. Dussault, Wn.2d 18, 333 P.3d 395, 400 (2014) The plaintiff was not appointed a guardian and did not receive legal notice of the potential claim, or the right to demand an accounting under the Trustee s Accounting Act until the plaintiff was 18. The TEDRA statute of limitations did not begin to run until that point, which made plaintiff s action timely. Case Law References Estate of Jones, 152 Wn.2d 1, 93 P.3d 147 (2004) Holding heir may not treat estate property as his/her own, and if heir or Personal Representative chooses to use estate property for own benefit they must pay rent. RE: The Estate of Virgil Victor Becker In re Estate of Becker, 177 Wn.2d 242, 298 P.3d 720 (2013) In this case, the Probate Guardian ad litem petitioned the court to remove the Personal Representative who was the spouse of the decedent and the parent of the minor beneficiary. The Probate Guardian ad litem entered into a CR2A agreement over the objection of the Personal Representative/surviving spouse that reduced the share of the minor. 9

12 RE: The Estate of Virgil Becker The Probate Guardian ad litem argued that the surviving spouse/former PR/natural guardian lacked standing to object to the CR2A. The trial court agreed. The surviving spouse/former Personal Representative/natural guardian of the minor appealed. RE: The Estate of Virgil Becker Subsequently the Washington State Supreme Court was asked to decide whether the surviving spouse, who did not receive anything under the decedent s will, nevertheless had standing to participate in the judicial proceedings when a third party contests the will. The Court held in 9 0 decision that because the surviving spouse would have a significant interest in the estate if the will was declared invalid, the surviving spouse had a direct interest in the will contest proceedings and was therefor a necessary party under the Trust and Estate Dispute Resolution Act (RCW 11.96A). RE: The Estate of Virgil Becker The Washington State Supreme Court analyzed the definition of party under TEDRA as being any person from a list of categories who has an interest in the subject of the particular proceeding. The listed categories include a surviving spouse, heir and beneficiary. Since the surviving spouse was a party under TEDRA if they had an interest in the subject of the proceeding. 10

13 RE: The Estate of Virgil Becker A person is interested in a proceeding if they have a direct, immediate and legally ascertainable pecuniary interest in the estate that would be impaired or benefited by the probate of a will or the declaration of the will s invalidity. The Washington State Supreme Court declined to award attorney s fees and remanded the case to the trial court for a determination as to whether the actions of the guardian ad litem including the appeal were within the scope of the appointment and therefor deserving of compensation. Thank you! Michael J. Longyear Attorney at Law Reed, Longyear, Malnati & Ahrens, PLLC 801 Second Ave, Suite 1415 (206)