Washington Elder Law Practice Report (#3)/ Guardianships and alternatives

November 18, 2013

Washington Elder LawThis is installment #3 in a continuing series of Washington Elder Law Practice Reports.

When an individual needs assistance with the management of daily activities, legal responses can range from setting up privately-arranged assistance, possibly with reliance on a Durable Power of Attorney (DPOA), to a guardianship or a Care Management Trust (CMT) as an alternative.

A guardianship action is a major intervention in the life of a ward, so should be evaluated carefully before proceeding.

Many individuals who require assistance receive support from lay guardians, who are typically family members. Lay guardians are appointed by Superior Court in guardianship actions and must complete basic training appropriate to their responsibilities. (RCW 11.88.020(3)). Online training is coordinated by the administrative office of the courts.

When such a lay guardian is not available, or not able to meet the requirements for appointment, a certified professional guardian (CPG) may be appointed by the Superior Court. A professional guardian is not a member of the ward’s family and charges fees for carrying out duties. (RCW 11.88.008).

Lay guardians often have close personal relationships with their wards.  These ties help support commitment by these guardians to take care of the needs of the wards.

On the other hand, CPGs in general do not have established personal relationships with wards, so it is appropriate for their qualifications and activities to be more closely supervised to make sure that the needs of wards are being met.

The Washington Supreme Court is responsible for operation of the CPG Board and program, under court rule GR23.

The CPG Board has the regulatory authority for “establishing the standards and criteria for the certification process for guardians, managing certification procedures, and handling grievances (complaints) filed against CPGs. (www.courts.wa.gov) .

There are about 250-300 CPGs presently listed on the CPG Board web page. About 50 archived disciplinary procedures are listed for 2001-2011, with another 25 or so listed as more recent.

A brief review of these public documents reveals that disciplinary proceedings have addressed a variety of administrative issues, including failure to file timely reports and failing to pay the expenses of wards in a timely manner.

More substantive issues can involve failures to maintain adequate contact with wards, adequately manage living situations, and assist with end-of-life issues.

Thus, guardianships can raise a range of concerns. It is often possible to arrange for less restrictive alternatives without the need for a guardianship, through bill-paying assistance and private caregivers. Authority to act may be through a DPOA.

It is also possible to set up a CMT that will protect the Trustor and Beneficiary without need for a formal guardianship. The CMT alternative is discussed in chapter 3 of volume 26 of Washington Practice, cited below.

If a DPOA with arranged services is best, an attorney can prepare and help implement the document, and assist with setting up services. If a CMT is best, an attorney can prepare and help implement the Trust.

If a guardianship is the best solution, an attorney can help a lay guardian petition and become qualified for appointment, or assist in monitoring the activities of a CPG and responding to any concerns on behalf of interested persons.

Elder law practice in Washington is discussed by Cheryl and Ferd Mitchell in volumes 26 and 26B of Washington Practice (Washington Elder Law and Practice and the associated Elder Law Handbook).