Chapter 12.13 Incapacitated or Minor Beneficiaries

• Jurisdiction: Washington

§12.13 INCAPACITATED OR MINOR BENEFICIARIES

The roles of "guardian ad litem" and "special representative" are fiduciary roles created by Washington's Trust and Estate Dispute Resolution Act (TEDRA), Chapter 11.96A RCW "Guardian ad litem" also describes a particular fiduciary role within the judicial process of appointing a guardian. See RCW 11.88.090. The role of the guardian ad litem under Chapter 11.88 RCW is not the subject of this section, but is discussed in §5.3(7) of Chapter 5 (Fiduciaries) of this deskbook.

(1) Guardian ad litem

TEDRA requires that all persons "interested in a trust or estate" be made parties to litigation involving the trust or estate and to any agreements that may be entered into with respect to such trust or estate. See RCW 11.96A.030(5) (definition of "party"); RCW 11.96A.100 (requiring notice to all parties of a judicial proceeding); RCW 11.96A.220 (requiring all parties to be signatories to TEDRA agreements). Under TEDRA, as necessary to ensure that all interested parties are represented, a guardian ad litem may be appointed 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." RCW 11.96A.160.

(2) Special representative

TEDRA provides a procedure for settling estate and trust disputes by use of a nonjudicial binding agreement (TEDRA agreement) between the parties that carries the same force and effect as a court order. See generally RCW 11.96A.220 -.250 (nonjudicial agreements authorized); RCW 11.96A.230 (filing agreement with court has effect of court order). The special representative is the equivalent of the guardian ad litem for such agreements. Like the guardian ad litem, a special representative may be appointed to represent the interests of a minor, an incompetent or disabled person, an unborn, or one whose identity or address is unknown. RCW 11.96A.250. Of the two roles, the guardian

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ad litem has broader powers and will supersede a duplicative special representative appointment. The special representative role is specific to TEDRA. RCW 11.96A.160(2).

The enabling provisions for the guardian ad litem appear broad enough to allow the guardian ad litem to represent its charges in a TEDRA agreement as well as all other TEDRA matters. On the other hand, a special representative probably is not able to represent its charges in an...