By Kim Schnuelle
It is not an uncommon occurrence. A client walks into your office seeking a divorce from an “impossible spouse.” Upon questioning, however, you discover the difficulties are not just of the more typical irreconcilable differences variety, but rather the presence of a serious incapacity in the other party. Perhaps the incapacity is a decline in mental acuity due to an accident or medical condition. Perhaps it involves a serious mental health issue or an involuntary mental health commitment. Or possibly it concerns a chemical dependency so severe that decision making is irrefutably compromised. In any of these circumstances, however, the other party may be incapable of understanding the proceedings and advocating for themselves without assistance. When such a situation occurs, appointment of a Guardian ad Litem (GAL) may be required to protect their interests.
As is often the case, the prudent practitioner should start by understanding their ethical duties under the Rules of Professional Conduct (RPCs). RPC 1.14 covers ethical duties when one’s client has the diminished capacity and lists “reasonably necessary protective action(s)” that should be taken, including consulting with others and in appropriate cases the appointment of a GAL, conservator, or guardian.1 In doing so, one must consult with the client and seek the client’s input as to how to proceed.2
If the opposing party is the litigant of concern, the ethical duties are similar. If the opposing party is represented by counsel, communication of concerns should be made directly to counsel.3 If the other party is unrepresented, communications are generally governed by RPC 4.3, a rule which does not discuss suspected incapacity.4
Should counsel have serious concerns about an opposing party’s competency, then counsel has a duty to bring the matter to the court’s attention.5 Litigants are presumed to be competent6 and the burden establishing incompetency is on the litigant raising the issue.7 If a party to a civil case cannot comprehend the significance of the legal proceedings in terms of their own best interests, then a GAL should be appointed.8 A GAL can be appointed in a marriage dissolution action if appropriate.9
Pursuant to RCW 4.08.060, if a party to an action is incapacitated, then they shall appear by a guardian; the court is required to appoint a guardian if one is not present for the incapacitated person.10 Indeed, it is “proper and desirable” for a court to appoint a GAL for a litigant if the court is “reasonably convinced” the litigant is not competent to comprehend the significance of the legal proceedings and its effects regarding their best interests.11 If the incapacitated person is the defendant, an application can be made by any party to the action as well.12
When a GAL is appointed, the incapacitated party can only appear through the GAL, who has statutory authority to represent that person’s interests.13 As personal autonomy issues are implicated by such an appointment, family law courts will typically first appoint a “court visitor,” a short-term GAL whose sole purpose is to investigate whether a full GAL is actually and ultimately needed.14 In King County, the GAL Registry will list which GALs will serve in an adult appointment capacity and a court visitor may be chosen from that list as well.
The court has an inherent duty to make this competency determination and the alleged incapacitated litigant has a right to present evidence on the question of their competency.15 Incompetency must be established by clear and convincing evidence.16 Participation of the alleged incapacitated adult is not required at the capacity determination hearing so long as that party had notice that the issue of their competency was being considered by the court.17 This process and the issuance of the subsequent report and its conclusions can take many months, leaving a family law case in partial limbo while the process unfolds.
In the matter at hand, if the facts after reasonable inquiry warrant a well-founded concern of incapacity, then counsel has a duty to inform the court of the litigant’s condition.18 Alcohol and chemical dependency issues can be a factor in adjudging incapacity.19 The emphasis of the court in any GAL appointment is on the person’s overall ability to function as a litigant, however, and not on any single factor such as a mental illness diagnosis.20
Once a GAL is appointed, the GAL has complete statutory power to represent the interests of the appointee.21 The GAL, as a party to the case, must have unrestricted access to their appointee, participate in any court proceeding, have access to any relevant records, and be given notice of any proposed agreements.22 The GAL has no authority to waive the incompetent adult’s substantial rights, however.23
In the case of an incapacitated party, special litigation arrangements should be made to protect that party’s interest even after the litigation concludes. Such protections could include the establishment of a special needs trust, where dissolution assets or spousal maintenance could be deposited and then spending of the same overseen by an appointed trustee. Such measures could also include an insurance policy, listing this trust as the sole beneficiary to guarantee the equivalent in maintenance payments in the event of the payor’s untimely demise.24 Other protective measures could be continuation of COBRA medical coverage post-divorce, payments directly to a residential care facility, and other health-related arrangements.
A critical factor for the wise practitioner therefore is to determine, to the extent possible, whether an incapacity issue exists at the beginning of any representation. Although the appointment of a GAL will of necessity slow the litigation, prompt appointment when necessary will minimize this delay. Although it is important not to “over define” incapacity for the reasons stated above, often an experienced attorney will have an intuitive feeling when such issues are present and can then make further investigations as to whether an incapacity is in fact present or not. A familiarity with GAL law and appointments will thus serve the prepared litigator in making this determination, meeting their ethical duties, and most importantly, providing fuller access to justice for the impaired litigant.
Kim Schnuelle is a senior attorney at McKinley Irvin, PLLC who specializes in international family law matters, divorce, child support, and child custody and residential issues. She also serves as a family law Commissioner Pro Tempore for King County Superior Court. Prior to her tenure at McKinley Irvin, she served as a Senior Prosecuting Attorney for the King County Prosecutor’s Office, Family Support Division.
1 RPC 1.14(b).
2 RPC 1.2(a).
3 See RPC 4.2.
4 See also RPC 3.4.
5 Flaherty v. Flaherty, 50 Wn.2d 393 (1957). See also RPC 3.3. Note that a duty of diligence is required and that action based upon a “subjective judgment” alone may result in a disciplinary action. See In re Disciplinary Proceeding Against Eugster, 166 Wn.2d 293 (2009) (attorney who “acted almost entirely upon his own subjective judgment” in appointment of guardian for a former elderly client violated multiple RPC duties and was suspended from practice for 18 months. It is logical, based upon the court’s language, that the same result would ensue if the aggrieved party had been the opposing party and not his former client).
6 Vo v. Pham, 81 Wn.App. 781 (1996) (citing Binder v. Binder, 50 Wn.2d 142 (1957)).
7 State v. Coley, 180 Wn.2d 543 (2014) (cert den. 135 S.Ct. 1444 (2015).
8 Graham v. Graham, 40 Wn.2d 64, 66-67 (1952).
9 RCW 4.08.060, See also Marriage of Lane, 188 Wn.App. 597 (2015), Marriage of Blakeley, 111 Wn.App. 351 (2002) (rev. den. 148 Wn.2d 1003 (2002)).
10 RCW 4.08.060, see also Vo v. Pham, 81 Wn.App. 781 (1996), State ex rel Richey v Superior Court for King County, 59 Wn.2d 872 (1962).
11 Graham v. Graham, 40 Wn.2d 240 (1952).
12 RCW 4.08.060(2).
13 In re Dill, 60 Wn.2d 148 (1962). The scope or representation and general responsibilities of a Guardian ad Litem’s authority are listed in GALR 2 and GALR 4.
14 See also GALR 6. However, the author has had personal experience of a court “skipping” this step in their own discretion.
15 Va v. Pham, 81 Wn.App. 781 (1996).
16 Binder v Binder, 50 Wn.2d 142, 148-49 (1957). Although this article discusses the appointment of an adult Guardian ad Litem in a civil/family law matter, the standards are different between criminal and civil proceedings. Thus it “entirely possible for a person to be competent in a civil case and not competent in a criminal case.” Matter of Welfare of F.M.O., 194 Wn.App. 226 (2016) (unpublished (portion of) opinion — see GR 14.1).
17 Marriage of Blakely, 111 Wn.App. 351, 360 (2002).
18 In re Dill, 60 Wn.2d 148 (1962).
19 See generally Matter of Dependency of L.D.L.N., 8 Wn.App.2d 1045 (2019) (unreported opinion, see GR 14.1.).
20 See generally Matter of Dependency of L.D.L.N., 8 Wn.App.2d 1045 (2019) (unreported opinion, see GR 14.1.).
21 See In re Dependency of P.H.V.S., 186 Wn.App. 167 (2014) (amended on denial of reconsideration, rev. den. 184 Wn.2d 1017 (2014).
22 GALR 4.
23 In re: Quesnell, 83 Wn.2d 224, 238-39 (1973), In re Houts, 7 Wn.App. 476 (1972).
24 See Marriage of Coyle, 61 Wn.App. 653, 663 (1991).
