Standards of Practice Regulation (400)

400 Standards of Practice

The following standards apply to all Certified Professional Guardians (Guardian). Standards apply only to the degree that the court has granted the authority contemplated in a given standard.

401 General

A guardian shall exercise care and diligence when making decisions on behalf of an incapacitated person. The civil rights and liberties of the incapacitated person shall be protected. The independence and self-reliance of the incapacitated person shall be maximized to the greatest extent consistent with their protection and safety.

401.1 The guardian shall at all times be thoroughly familiar with RCW 11.88, RCW 11.92, GR 23, these standards, and any other regulations or statutes which govern the conduct of the guardian in the management of affairs of an incapacitated person. When a question exists between the standards and a statute, timely direction shall be sought from the court. If a guardian is aware of a court order of the court in a specific case which may lead to a conflict with these regulations, the guardian shall disclose this to the court.

401.2 The guardian shall seek legal advice as necessary to know how the law applies to specific decisions.

401.3 The guardian shall provide reports and accountings that are timely, complete, accurate, understandable, and in a form acceptable to the court.

401.4 The guardian shall not act outside of the authority granted by the court.

401.5 The guardian shall protect the personal and economic interests of the incapacitated person and foster growth, independence, and self-reliance.

401.6 The guardian must know and acknowledge personal limits of knowledge and expertise and shall assure that qualified persons provide services to the incapacitated person.

401.7 Whenever feasible a guardian shall consult with the incapacitated person, and shall treat with respect, the feelings, values, and opinions of the incapacitated person. Wherever possible, the guardian shall acknowledge the residual capacity of the incapacitated person to participate in or make some decisions.

401.8 When the guardian has limited authority the guardian shall work cooperatively with the incapacitated person or with others who have authority in other areas for the benefit of the incapacitated person.

401.9 The guardian shall cooperate with and carefully consider the views and opinions of professionals, relatives, and friends who are knowledgeable about the incapacitated person.

401.10 The guardian shall seek independent professional evaluations, assessments, and opinions when necessary to identify the incapacitated person's needs and best interests.

401.11 The guardian shall recognize that his or her decisions are open to the scrutiny of other interested parties and, consequently, to criticism and challenge. Nonetheless, subject to orders of the court, the guardian alone is ultimately responsible for decisions made on behalf of the incapacitated person.

401.12 When possible, the guardian will defer to an incapacitated person's autonomous capacity to make decisions.

401.13 A guardian shall not disclose personal or other sensitive information about the incapacitated person to third parties except when necessary and appropriate to the needs of the incapacitated person.

401.14 The duties of a guardian to an incapacitated person are not conditioned upon the person's ability to compensate the guardian.

401.15 Guardians of the Person shall have meaningful in-person contact with their clients as needed and shall maintain telephone contact with care providers, medical staff, and others who manage aspects of care as needed and appropriate. Meaningful in-person contact shall provide the opportunity to observe the incapacitated person's circumstances and interactions with care givers.

401.16 Guardians of the Estate only shall maintain meaningful in-person contact with their clients as necessary to verify the individual's condition and status and that financial arrangements are appropriate.

401.17      All certified professional guardians and guardian agencies have a duty by statute to appoint a standby guardian.  In appointing a standby guardian it is the best practice to appoint a certified professional guardian unless otherwise authorized by the local court with jurisdiction. (Amended January 9, 2006).

402 Decision Standards

All decisions and activities of the guardian shall be made according to the applicable decision standard.

402.1 The primary standard is the Substituted Judgment Standard. This means that the guardian shall make reasonable efforts to ascertain the incapacitated person's historic preferences and shall give significant weight to such preferences. Competent preferences may be inferred from past statements or actions of the incapacitated person.

402.2 When the competent preferences of an incapacitated person cannot be ascertained, the guardian is responsible for making decisions which are in the best interests of the incapacitated person. A determination of the best interests of the incapacitated person shall include consideration of the stated preferences of the incapacitated person.

403 Ethics

The guardian shall exhibit the highest degree of trust, loyalty, attentiveness, and fidelity in relation to the incapacitated person.

403.1 The guardian shall avoid self-dealing, conflict of interest, and the appearance of a conflict of interest. Self-dealing or conflict of interest arise when the guardian has some personal, family, or agency interest from which a personal benefit would be derived. Any potential conflict shall be disclosed to the court immediately.

403.2 All expenses paid or incurred on behalf of the incapacitated person by the guardian shall be documented, reasonable in amount, and incurred for the incapacitated person's welfare.

403.3 All compensation for the services of the guardian shall be documented, reasonable in amount, and incurred for the incapacitated person's welfare. The guardian shall not pay or advance himself/herself fees or expenses except as approved by the court.

403.4 Provision of compensated services other than guardianship services to an incapacitated person by the guardian shall be considered a potential conflict of interest, which must be fully disclosed.

403.5 An organization whose primary activities are provision of therapeutic, clinical, residential, or medical services shall not act as guardian for one of its patients or clients. Employees, agents, or components of such an organization shall not act as guardian for one of its patients or clients.

403.6 The guardian shall disclose to the court and interested parties all compensation, fees and expenses requested, charged, or received in a guardianship case.

403.7 Payment of fees or other compensation for guardianship services by a party other than the incapacitated person is a potential conflict of interest which shall be fully disclosed.

403.8 The guardian shall protect the incapacitated person's rights and best interests against infringement by third parties.

403.9 The guardian shall, whenever possible, provide requested information to the incapacitated person unless the guardian is reasonably certain that substantial harm will result from providing such information. This information shall include, but not be limited to, regular reports on the status of investments and operating accounts, and on the costs and disbursements necessary to manage the incapacitated person's estate, medical and other personal information related to the care of the incapacitated person.

403.10 Unless otherwise directed by the court, the guardian shall provide copies of all material filed with the court and notice of all hearings in the guardianship to the incapacitated person.

404 Residential Decisions

The guardian shall ensure that the incapacitated person resides in the least restrictive environment that is appropriate and available.

404.1 The guardian shall acknowledge the need to allow all persons the opportunity to engage in activities and live in conditions which are culturally and socially acceptable within the context of the incapacitated person's cultural and life values; or, when cultural and life values cannot be determined, conditions which are culturally and socially acceptable.

404.2 The guardian shall take reasonable measures to effectuate the incapacitated person's residential preferences.

404.3 The guardian shall know the current state of the law regarding limits on the guardian's authority as to residential decisions.

404.4 The guardian shall not remove the incapacitated person from his or her home or separate the incapacitated person from family and friends unless such removal is necessary to prevent significant harm or because of financial constraints. The guardian shall make reasonable efforts to ensure the incapacitated person resides at the incapacitated person's home or in a community setting.

404.5 The guardian shall, to the extent possible, select residential placements which enhance the quality of life of the incapacitated person, provide the opportunity to maximize the independence of the incapacitated person, and provide for physical comfort and safety.

404.6 A relocation should include consultation with professionals actively involved in the care of the incapacitated person, the incapacitated person, objective third parties and, whenever possible, appropriately involved family and friends of the incapacitated person.

404.7 The guardian shall, as necessary, thoroughly research and evaluate the incapacitated person's residential alternatives.

404.8 The guardian shall regularly monitor the incapacitated person's residential placement to ensure appropriateness and that such placement is the least restrictive alternative. The guardian shall consent to changes, as they become necessary, advantageous, or otherwise in the incapacitated person's best interests. The guardian shall consider that even changes within an existing residential facility have an impact on the quality of life of the incapacitated person.

404.9 Should the only available placement not be the most appropriate or least restrictive, the guardian shall regularly review alternatives to the placement and shall make reasonable efforts to arrange an appropriate and least restrictive residence.

405 Medical Decisions

The guardian shall provide informed consent on behalf of the incapacitated person for the provision of care, treatment and services and shall ensure that such care, treatment and services represents the least restrictive form of intervention that is appropriate and available.

405.1 The guardian shall monitor the care, treatment, and services the incapacitated person is receiving to ensure that it is appropriate. The guardian shall consent to changes in service as necessary, advantageous, or in the best interests of the incapacitated person.

405.2 The guardian shall actively promote the health of the incapacitated person by arranging for regular preventive care including but not limited to dental care, diagnostic testing, and routine medical examinations.

405.3 The guardian shall be available at all times to respond to urgent need for medical decisions. The guardian shall provide directives regarding treatment or non-treatment to be followed by medical staff in emergencies.

405.4 In the event the only available treatment, care or services are not the most appropriate and least restrictive, the guardian shall advocate for the incapacitated person's right to appropriate and least restrictive treatment, care or services.

405.5 The guardian shall be fully informed as to risks and benefits to the incapacitated person prior to seeking advance court authorization for medical treatment when law requires such authorization.

405.6 The guardian shall be familiar with the law regarding the withholding or withdrawal of life-sustaining treatment.

406 Financial Management

The guardian shall assure competent management of the property and income of the estate. In the discharge of this duty, the guardian shall exercise the highest level of fiduciary responsibility, intelligence, prudence, and diligence and avoid any self-interest.

406.1 The guardian shall know and obey the law related to managing an incapacitated person's estate. Such knowledge shall include statues relating to the investment of assets, restrictions imposed on investing and expenditures by RCW 11.88 and 11.92, and laws relating to employment, income, and taxes. The guardian shall hire competent professionals as appropriate to assure compliance with all statues and regulations relating to the management of funds.

406.2 The guardian shall maintain all bonding, blocking, and insurance requirements as may be required by the court.

406.3 The guardian shall manage the estate with the primary goal of providing for the needs of the incapacitated person.

406.4 In certain cases, guardian shall consider the needs of the incapacitated person's Dependents for support or maintenance, provided appropriate authority for such support is obtained in advance. The wishes of the incapacitated person as well as past behavior can be considered, bearing in mind both foreseeable financial requirements of the incapacitated person and the advantages and disadvantages to the incapacitated person of such support or maintenance.

406.5 The guardian shall exercise prudence in investment, shall periodically review the incapacitated person's situation and assets, and make recommendations regarding appropriate investments. In the exercise of prudence the guardian shall:

406.5.1 Not allow assets to sit idle except for good reasons.

406.5.2 Consider the tax consequences of decisions.

406.5.3 Consider the incapacitated person's long term ability to sustain costs of arrangements made by the guardian.

406.5.4 Consider the incapacitated person's ability to gain the benefits of specific decisions.

406.5.5 Consider the costs incurred in managing investments, including the costs of the guardian, those specialists hired by the guardian, and the costs of the investment vehicles.

406.5.6 Consider the incapacitated person's historical investment pattern and tolerance for risk, lifestyle needs, care and medical needs, estate considerations, tax consequences, and life expectancy.

406.6 When the available estate of the incapacitated person is sufficient, the guardian may petition the court for authority to make such gifts as are consistent with the wishes or past behavior of the incapacitated person, bearing in mind both foreseeable requirements of the incapacitated person and the advantages and disadvantages to the incapacitated person of such gifts, including tax consequences.

406.7 A guardian shall not accept a gift from an incapacitated person or their estate other than ordinary social hospitality.

406.8 When it is likely that the incapacitated person's estate will be exhausted, the guardian shall, as appropriate, make plans and take necessary steps to acquire public benefits on behalf of the incapacitated person. When implementing necessary changes in the incapacitated person's lifestyle, the guardian shall seek to minimize the stress of any transition.

406.9 There shall be no self-interest in the management of the estate by the guardian; the guardian shall exercise caution to avoid even the appearance of self-interest.

406.10 A guardian shall not commingle the funds of an incapacitated person with funds of the guardian or the funds of staff. A guardian may consolidate client accounts, using appropriate accounting software and procedures, including pro-rata assignment of interest earned and fees paid and accurate individual accounting for each client's funds, provided the guardian has received specific authority from the court to do so. Each payment from a consolidated account shall be from funds held in the account on behalf of the individual for whom the payment is made.

406.11 The guardian shall not borrow from an incapacitated person. A guardian shall not lend funds at interest to an incapacitated person.

406.12   The responsibility to protect and preserve the guardianship estate rests with the certified guardian appointed by the court. When the guardian is an agency, this responsibility is that of the agency and the certified guardians identified with the Certified Professional Guardian Board as the responsible guardians for the agency. While it may be appropriate and necessary to retain and reasonably rely upon the services of knowledgeable individuals or entities to assist in the performance of duties, it is the responsibility of the guardian to provide appropriate oversight and review, in order to preserve the guardianship estate. (Amended September 11, 2006).

407 Changes of Circumstances

The guardian has an affirmative obligation to be alert to changes in the incapacitated person's condition or circumstances and report to the court when an increase or reduction in the authority of the guardian should be considered.

407.1 The guardian shall seek out information that will provide a basis for termination or limitation of the guardianship.

407.2 Upon indication that termination or limitation of the guardianship order is warranted, the guardian shall request court action.

407.3 The guardian shall assist the incapacitated person to terminate or limit the guardianship and arrange for independent representation for the incapacitated person when necessary.

407.4 If the guardianship is a limited guardianship, the guardian shall report to the court when there are circumstances in which the incapacitated person appears to require assistance which exceeds the authority of the guardian.

407.5 If the guardianship is of the person only, the guardian shall report to the court when protection of the incapacitated person's estate may be necessary.

407.6 If the guardianship is of the estate only, the guardian shall report to the court when protection of the person may be necessary.

408 Applicable Law

The guardian shall perform duties and discharge obligations in accordance with current Washington law governing the certification of guardian. In each guardianship, the guardian shall comply with the requirements of the court that made the appointment.