Washington Code 11.130.505 – Duties of conservator
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(1) A conservator is a fiduciary and has duties of prudence and loyalty to the individual subject to conservatorship.
Terms Used In Washington Code 11.130.505
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Fiduciary: A trustee, executor, or administrator.
- person: may be construed to include the United States, this state, or any state or territory, or any public or private corporation or limited liability company, as well as an individual. See Washington Code 1.16.080
- Personal property: All property that is not real property.
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Representation: refers to a method of determining distribution in which the takers are in unequal degrees of kinship with respect to a decedent, and is accomplished as follows: After first determining who, of those entitled to share in the estate, are in the nearest degree of kinship, the estate is divided into equal shares, the number of shares being the sum of the number of persons who survive the decedent who are in the nearest degree of kinship and the number of persons in the same degree of kinship who died before the decedent but who left issue surviving the decedent; each share of a deceased person in the nearest degree must be divided among those of the deceased person's issue who survive the decedent and have no ancestor then living who is in the line of relationship between them and the decedent, those more remote in degree taking together the share which their ancestor would have taken had he or she survived the decedent. See Washington Code 11.02.005
(2) A conservator shall promote the self-determination of the individual subject to conservatorship and, to the extent feasible, encourage the individual to participate in decisions, act on the individual’s own behalf, and develop or regain the capacity to manage the individual’s personal affairs.
(3) In making a decision for an individual subject to conservatorship, the conservator shall make the decision the conservator reasonably believes the individual would make if able, unless doing so would fail to preserve the resources needed to maintain the individual’s well-being and lifestyle or otherwise unreasonably harm or endanger the welfare or personal or financial interests of the individual. To determine the decision the individual would make if able, the conservator 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.
(4) If a conservator cannot make a decision under subsection (3) of this section because the conservator does not know and cannot reasonably determine the decision the individual subject to conservatorship probably would make if able, or the conservator reasonably believes the decision the individual would make would fail to preserve resources needed to maintain the individual’s well-being and lifestyle or otherwise unreasonably harm or endanger the welfare or personal or financial interests of the individual, the conservator shall act in accordance with the best interests of the individual. In determining the best interests of the individual, the conservator shall consider:
(a) Information received from professionals and persons that demonstrate sufficient interest in the welfare of the individual;
(b) Other information the conservator believes the individual would have considered if the individual were able to act; and
(c) Other factors a reasonable person in the circumstances of the individual would consider, including consequences for others.
(5) Except when inconsistent with the conservator’s duties under subsections (1) through (4) of this section, a conservator shall invest and manage the conservatorship estate as a prudent investor would, by considering:
(a) The circumstances of the individual subject to conservatorship and the conservatorship estate;
(b) General economic conditions;
(c) The possible effect of inflation or deflation;
(d) The expected tax consequences of an investment decision or strategy;
(e) The role of each investment or course of action in relation to the conservatorship estate as a whole;
(f) The expected total return from income and appreciation of capital;
(g) The need for liquidity, regularity of income, and preservation or appreciation of capital; and
(h) The special relationship or value, if any, of specific property to the individual subject to conservatorship.
(6) The propriety of a conservator’s investment and management of the conservatorship estate is determined in light of the facts and circumstances existing when the conservator decides or acts and not by hindsight.
(7) A conservator shall make a reasonable effort to verify facts relevant to the investment and management of the conservatorship estate.
(8) A conservator that has special skills or expertise, or is named conservator in reliance on the conservator’s representation of special skills or expertise, has a duty to use the special skills or expertise in carrying out the conservator’s duties.
(9) In investing, selecting specific property for distribution, and invoking a power of revocation or withdrawal for the use or benefit of the individual subject to conservatorship, a conservator shall consider any estate plan of the individual known or reasonably ascertainable to the conservator and may examine the will or other donative, nominative, or appointive instrument of the individual.
(10) A conservator shall maintain insurance on the insurable real and personal property of the individual subject to conservatorship, unless the conservatorship estate lacks sufficient funds to pay for insurance or the court finds:
(a) The property lacks sufficient equity; or
(b) Insuring the property would unreasonably dissipate the conservatorship estate or otherwise not be in the best interest of the individual.
(11) If a power of attorney for finances is in effect, a conservator shall cooperate with the agent to the extent feasible.
(12) A conservator has access to and authority over a digital asset of the individual subject to conservatorship to the extent provided by the revised uniform fiduciary access to digital assets act (chapter 11.120 RCW) or court order.
(13) A conservator for an adult shall notify the court if the condition of the adult has changed so that the adult is capable of exercising rights previously removed. The notice must be given immediately on learning of the change.
(14) A conservator shall notify the court within thirty days of any substantial change in the value of the property of the person subject to conservatorship and shall provide a copy of the notice to the person subject to guardianship, a person entitled to notice under RCW 11.130.420(6) or a subsequent court order, and any other person the court has determined is entitled to notice and schedule a hearing for the court to review the adequacy of the bond or other verified receipt under RCW 11.130.445 and 11.130.500.
NOTES:
Effective dates—2020 c 312: See note following RCW 11.130.915.