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Seeking Temporary Relief --- Motion for a
Temporary Restraining Order
Adapted
with permission from Washington Guardianship
http://www.wa-guardianship.com
a
service of the Law Office of
Richard Wills
Often going hand in hand with a person's becoming less and less capable of caring for themselves and their financial affairs is their abandonment, abuse, financial exploitation, or neglect or threat of the same by another. Opportunities for this abound, such as by their:
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Care-taker or by a relative or close or intimate friend, who sees the incapacitated person as an easy "mark" and is exerting undue influence over the incapacitated person to his/her detriment. Oftentimes, such an influencer will also attempt to restrict access to the incapacitated person, in order to have the incapacitated person rely for his/her support more and more on the influencer, to the exclusion of everyone else. The typical personal situation:
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Influencer squirrels away the incapacitated person (eg, in the influencer's home, in a publicly inaccessible room in the incapacitated person's home, or in a care facility, which may be half way around the world --- your author's last one of these was in Asia) and invents reasons why the incapacitated person is unavailable to be seen by others, despite their attempts to continue to make contact with the incapacitated person.
Typical financial situations:
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Influencer prepares a Deed to the incapacitated person's home transferring it to the incapacitated person and the influencer as joint tenants, brings in a Notary, puts a pen in the incapacitated person's hand, and says "Sign here." The Deed corrupts the incapacitated person's estate plan by:
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Removing the home from his/her probate estate
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Preventing it from passing either according to the terms of his/her Will or to his/her heirs, and
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Causing the home at the incapacitated person's imminent death not only to pass to the influencer but also to pass outside of probate.
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Influencer takes the incapacitated person to his/her bank or brokerage and gets him/her to sign new account statements putting the accounts into joint tenancy form with the influencer.
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Attorney-in-Fact under a Power of Attorney the incapacitated person signed when he/she was more capable. Typical situations:
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As above but in the absence of the incapacitated person and with the Attorney-in-Fact him/herself signing the Deed or account statement on behalf of the incapacitated person under his/her Power of Attorney.
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The Attorney-in-Fact begins selling off all the incapacitated person's assets, "in order to raise funds for the incapacitated person's ongoing care," and then deposits the sale proceeds in a joint tenancy bank account in the name of the incapacitated person and the Attorney-in-Fact.
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The Attorney-in-Fact sells off one or more of the incapacitated person's assets to the influencer him/herself or to one of his/her friends or relatives at a price far below the asset's fair market value.
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The Attorney-in-Fact begins transferring assets (eg, cash) or delivering untitled assets (eg, household items and personal effects) to him/herself or his/her friends or relatives or using assets (eg, home, car, boat, vacation home, etc.) solely for his/her own benefit or that of his/her friends or relatives.
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Trustee of a Trust held for the benefit of the incapacitated person (usually, the Trustee of the Incapacitated Person's Revocable Living Trust).
What is needed is an Order RIGHT NOW, to stop what has likely become an ongoing series of bad acts or omissions against the incapacitated person while your Petition for Guardianship can wind its way through the Court and be heard. Washington law provides two alternate pathways to obtain such temporary relief, under either:
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The Guardianship statutes, specifically RCW 11.88.045(5), or
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The Vulnerable Adult statutes, specifically RCW 74.34.120,
both of which provide for the same remedy --- the issuance of a Temporary Restraining Order (a "TRO"). RCW 7.40.020 As you are already bringing a Petition for Guardianship, we will only consider that pathway here (the other pathway is described in the Vulnerable Adult FAQ).
Under the Guardianship statutes, RCW 11.88.045(5) provides in pertinent part:
During the pendency of an action to establish a guardianship, a petitioner or any person may move for [a TRO] ... to:
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Protect the alleged incapacitated person from abuse, neglect, abandonment, or exploitation, as those terms are defined [in the Vulnerable Adult statutes], or
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Address any other emergency needs of the alleged incapacitated person.
To obtain a TRO, you must allege that "the commission or continuance [of some act] would produce great injury to the [Incapacitated Person/Vulnerable Adult], ...." RCW 7.40.020 Therefore, you would bring a Motion for Temporary Restraining Order in the Guardianship proceeding, usually filing it simultaneously with your Petition for Guardianship and having it heard then, and your Motion should allege that the ongoing abandonment, abuse, financial exploitation, or neglect or the threat of the same, if allowed to continue unabated, "would produce great injury to the Alleged Incapacitated Person."
If your situation is one in which a Temporary Restraining Order is appropriate, complete the
Motion for Temporary Restraining Order form AND Temporary Restraining Order form.
You would then:
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File the Petition & Motion at the Superior Court Clerk's Office
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Pay its filing fee unless you can get it waived
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Take the Petition & Motion to an appropriate Courtroom
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Appear before the Court
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Have the Judge sign the Temporary Restraining Order, and upon returning home
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Have a copy of the Temporary Restraining Order personally served on the Respondent.
Service can be made, for example, either:
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Informally, by a friend or an acquaintance or
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Formally, by a professional process server or law enforcement officer.
Process servers can be found in the telephone book, under "Process Servers," generally cost around $40-50, and, following service of process, will either return to you and file themselves with the Court a Return of Service, confirming that service was made. If service is made informally, you will need to have the server complete and deliver to you a: Return of Service form which you would then file with the Court.
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