GR 23 - Rule for Certifying Professional Guardians

• Proposed Changes to GR 23 - Rule for Certifying Professional Guardians (in Word Format)
• Comments Received for GR 23 - Rule for Certifying Professional Guardians

GENERAL RULES (GR)
RULE 23. RULE FOR CERTIFYING PROFESSIONAL GUARDIANS

(A) Purpose: The purposes of the suggested amendments are twofold: (1) to address issues not addressed by GR 23 which the Board has encountered over the past several years in implementing the rule; and (2) to increase education and experience requirements for persons wishing to practice as certified professional guardians in this state.

Introduction

An RCW 11.88 guardian is a person appointed by the superior court to make decisions on behalf of an incapacitated person. A guardian may be appointed as the “guardian of the person”, or as the “guardian of the estate”, or to fulfill both roles on behalf of the incapacitated person. See Chapter 11.88 RCW. Whether the guardian is appointed to fill one or both roles, the responsibilities of the guardian are substantial. The duties of the guardian of the person include making decisions regarding the healthcare, residence, and day-to-day social life of the incapacitated person. Guardians of the person make decisions about income and investments, expenditures, and estate planning for the incapacitated person. All of these decisions are made under the overall supervision of the superior court by means of regular reporting by the guardian. See RCW 11.92.

A guardian may be a family member, friend, or volunteer, or may be a “professional guardian” who earns his or her living from the fees charged for providing services in a guardianship. See RCW 11.88.008. To qualify for appointment by the superior court, a professional guardian must meet the certification requirements established by the administrator for the courts. See RCW 11.88.020 (1).

The certification requirements for professional guardians, set forth in GR 23 (1)(d), have not changed since the effective date on January 25, 2000, of GR 23. Subsections (i), (ii), and (iii), repeat the first three statutory criteria for all guardians (professional and nonprofessional) set forth in RCW 11.88.020 (1): a guardian must be at least 18 years of age, be of sound mind and have no felony or misdemeanor convictions involving moral turpitude. Subsection (iv) mandates minimum education and experience requirements and subsection (v) mandates certification training.

1. Assessment of Fitness to Practice as a Certified Professional Guardian.

   1. Applicant’s Ability to Manage His or Her Financial Affairs.

      Suggested Amendments to GR 23 (d)(1) and (d)(8)(vi).

      The Board is vested with the authority to investigate an applicant for certification as a professional guardian to determine whether the applicant meets certification requirements. GR 23 (c)(2)(ix). Currently, General Rule 23 requires that applicants for certification comply with the provisions governing guardians contained in Chapters 11.88 and 11.92 RCW, and meet additional specific requirements. GR (d)(1).

      The specific requirements are that the applicant be an adult of sound mind, have no convictions of crimes involving moral turpitude, and have completed required education. GR 23 (d)(1). To facilitate the Board’s investigation of the applicant’s ability to perform the guardian’s fiduciary duties to account for, protect and preserve the guardianship estate (RCW 11.92.040), the Board proposes adding the requirements that the applicant submit a personal credit report and disclose whether he or she has filed for bankruptcy. See suggested amendments to GR 23 (d)(1) and (d)(8)(vi).

      This information will provide the Board with some of the applicant’s history of managing their own financial affairs. An applicant’s credit history is a useful tool in assessing the applicant’s ability to manage another person’s financial affairs. The legislature has recognized that the Department of Financial Institutions, which licenses escrow officers, has the same need to review an individual’s credit and civil judgment history to assess an applicant’s qualifications for an escrow agent license. Escrow agents perform similar, but far less intrusive, fiduciary duties than professional guardians -- both must protect and preserve their clients’ funds, see RCW 18.44.031(5) and (6), but a certified professional guardian’s obligations far exceed those of escrow agents, since the guardian must gather together all assets, safeguard the client’s funds for the client’s lifetime, and make prudent expenditure and investment decisions.

   2. Disclosure – Applicants and Certified Professional Guardians and Agencies.

      Suggested New Subsection GR 23 (d)(8) and Suggested Amendments to

      GR 23 (d)(9) and GR 23 (e).

      Currently, GR 23(e) requires certified professional guardians and agencies to disclose to the Board, on a continuing basis: commission of crimes, acts of moral turpitude, licensing or disciplinary actions, adjudications specified in RCW 43.43.830 and.842, judgments or findings related to a guardian’s performance, address and employment changes, and changes in certified professional guardians in their employ. All of this information is important and necessary for the Board to perform its duty to ensure professional guardians are qualified for certification.

      The Board’s proposed amendments separate the disclosure requirements for applicants and currently certified professional guardians and agencies, and provide a limited time period within which disclosure must occur, rather than relying on disclosure on a continuing basis. The Board proposes that disclosure occur within 30 days of any of the listed occurrences, and also requires an annual disclosure statement from certified professional guardians and agencies.

      In addition, the Board proposes to expand the current disclosure requirement of judgments or findings related to the applicant’s performance as a guardian, to include those related to his or her performance as a fiduciary. Failure to perform fiduciary duties while acting in any fiduciary capacity, such as a trustee, under a power of attorney, or as a representative payee, is an important determinant of whether the individual is fit for certification as a professional guardian.

      New subsection GR 23 (d)(8) sets forth the disclosure requirements for applicants, and proposed amended section GR 23 (e) sets forth disclosure requirements for certified professional guardians and agencies. For consistency, the criteria for denial of certification in GR 23 (d)(9)¹ have been amended to reflect the same provisions set forth in the disclosure requirements.

   3. Conflicts of Interest.

      Suggested New Subsection GR 23 (c)(6).

      The Board currently has no rule on when it is appropriate for a member to disqualify himself or herself from participating in Board decisions due to a conflict of interest. Because the Board is not only a policy-making Board, but also an adjudicatory decision-maker on discipline and licensing matters, it is vital that the Board’s decisions be made fairly and impartially. The suggested new subsection in GR 23 (c)(6) is based on the standard in the Code of Judicial Conduct (CJC) for when a judicial officer should disqualify himself or herself from making a decision on a disputed matter. See CJC 3 (d)(1)(a). A similar standard is used by the Washington State Bar Association’s Disciplinary Board in determining when a member of that Board has a conflict of interest. See ELC Rule 2.3 (h)(1)(A).

   4. Leave of Absence.

      Suggested New Subsection GR 23 (c)(7).

      The Board currently has no procedure to address how to proceed when a Board member is the subject of a disciplinary investigation. The Washington State Bar Association’s Disciplinary Board operates under procedures set forth in the Rules for Enforcement of Lawyer Conduct (ELC) 2.3 (b)(5) for a leave of absence in such circumstances. The suggested new subsection at GR 23 (c)(7) allows the Board to adopt regulations providing for such a leave of absence. The suggested new subsection also provides that a Board member may no longer serve on the Board if the Board has imposed a final disciplinary sanction on the Board member.

   5. Denial for Lack of Requisite Moral Character.

      Suggested New Subsection GR 23 (d)(9)(vi).

      A guardian must be an individual of the highest integrity, due to the authority the guardian wields over the life of the incapacitated person. Should any facts come to the Board’s attention during the course of the Board’s investigation of a person’s application for certification that cause the Board to doubt that the applicant possesses the necessary good moral character or is otherwise unqualified to work as a professional guardian, the Board should have the authority to deny certification. New subsection GR 23 (d)(9)(vi) gives the Board that authority. This subsection is based on the rule setting forth the qualifications for admission to practice law in Washington, which also requires that applicants possess good moral character. See APR 5 (a).

2. The Board’s Authority to Implement the Regulatory Framework.

   Suggested Amendments to GR 23 (c).

   The suggested amendments to GR 23(c) address issues related to Board service and administration that are not currently addressed in the rule:

   • Subsection (c)(1)(i), specifying the areas of expertise from which Board members should be drawn, updates the term “guardian advocates” to “advocates for incapacitated persons” to more accurately describe this area of expertise. The proposed amendment also provides that no more than one-third of the Board membership shall be practicing professional guardians so that Board members are drawn from wide areas of expertise related to the work of the Board and the Board avoids the appearance of guardians having undue influence over the regulatory process.

   • Subsection (c)(1)(ii) limits service to (3) - three-year terms, not to exceed nine consecutive years.

   • Subsection (c)(1)(iv) provides that vacancies will be filled for any unexpired term.

   • Use of the term “disciplinary” in subsections (c)(2)(viii) & (xii) in referring to the proceedings and sanctions that may result from a grievance process provides consistency throughout the rule and the Board’s regulations.

   • Additional subsections (c) (4), (6) and (7) address: expense reimbursement, conflict of interest, and leave of absence.

   • Subsection GR 23 (c)(2)(xi) relates to the disclosure of confidential information and has been amended to authorize the Board to adopt regulations pertaining to the disclosure of records. This will allow the Board to regularly update its disclosure provisions to comply with changes in public disclosure laws applicable to other similar state-licensed professionals. The Board’s proposed public records regulations include the confidentiality protections currently in GR 23, as well as provisions for release of records. The proposed regulations are posted for comment on the Board’s website² and are slated for adoption at the Board’s January 14, 2008 meeting. (A copy of the proposed regulations are attached as Exhibit A.).

3. Increased Education and Experience Requirements for Certified Professional Guardians Are Needed to Ensure Professional Guardians Are Capable of Performing Their Duties on Behalf of Incapacitated Persons.

   Suggested Amendments to GR 23 (d)(1)(iv) & (v).

   The Certified Professional Guardian Board has concluded that there is a need to increase the education and experience requirements for certification as a professional guardian under GR 23 (d)(1)(iv). The Board is aware that in 2006 the Supreme Court declined to adopt suggested changes to the education and experience requirements for certification. The Court’s action led to over a year of discussion and debate by the Board regarding the necessity of the suggested changes. The result is that the Board respectfully requests that the Court once again consider the rationale for those changes and publish the suggested changes for comment. We believe that those most familiar with guardianships will champion better-qualified certified professional guardians.

   The current certification rules require only that applicants have a high school diploma, or GED, and five years’ experience working in a discipline pertinent to the provision of guardianship services; or an Associate of Arts degree and three years‘ experience working in a discipline pertinent to the provision of guardianship services; or a Bachelor of Arts degree and one year of experience working in a discipline pertinent to the provision of guardianship services. The Board proposes that the minimum qualification requirement be changed to require an associate’s degree and four years’ experience working in a discipline pertinent to providing guardian services. Applicants with a bachelor’s degree would be required to have two years of pertinent experience.

   Increasing the qualifications to become certified distinguishes certified professional guardians from volunteer and non-professional guardians through education and experience. The Board seeks to help protect incapacitated persons and to provide assurance to courts, families, and the public that members of the profession possess adequate education and experience to properly address the complex issues faced by guardians. Using the term “professional” for individuals who lack specialized knowledge or academic preparation is misleading. The duties of a certified guardian are varied and complex given the guardian’s absolute fiduciary responsibility for the incapacitated person’s health and welfare. On a daily basis, guardians make investment, health care, residential and other decisions that govern the lives of the incapacitated persons and, often, also their deaths.

   In 1997, Washington State took a leadership position nationwide when it began the process of establishing certification requirements for professional guardians in response to the Legislature’s desire to assure quality services provided by professional guardians. The Legislature directed the administrator for the courts to establish certification requirements by January 1, 1999. (Chapter 312, Laws of 1997.) The Supreme Court established provisional certification requirements by January 1, 1999 and adopted the current certification requirements effective January 25, 2000. At that time, there were many people interested in becoming certified guardians who had been working as court-appointed guardians for years. They had accumulated many years of experience in the field and the Board had no wish to bar those people from becoming certified, despite their lack of educational credentials. The Board recommended to the Supreme Court that a level be set for educational requirements that allowed those highly-experienced guardians to become certified.

   Now, all of those experienced guardians have been certified under the current GR 23 certification requirements. The new applicants do not have years of qualifying experience as actual court-appointed guardians. Instead, applicants often meet only the bare minimum requirement of experience in a discipline pertinent to the provision of guardian services, such as legal, financial, social service or heath care, with no actual experience as a guardian. These applicants, even after they become certified, need significant continuing education to learn how to be guardians. It has become apparent to the Board that these applicants need stronger educational and experience backgrounds to ensure that they are able to learn and fulfill the varied and complex duties of a certified professional guardian. Requiring a minimum of an associate’s degree is not unreasonable. Community colleges offer coursework at a reasonable cost throughout Washington.

   Over the past ten years, it has become apparent to the Board and to the public that the expanded lifestyle choices available for incapacitated persons demand that professional guardians possess more advanced knowledge and decision-making ability. The options available to incapacitated persons are the result of societal changes. Advances in medicine have made health-care decisions more complex. Simply choosing between Medicare’s prescription drug programs, a decision required for every senior citizen, requires significant analysis and decision-making ability.³ The Medicaid application process alone is confusing and complicated. Often, we find that guardians do not have a clue about how to secure payments even for the incapacitated person’s housing or medical care. In addition, the next generation of retirees, baby boomers who have retirement income, pensions, and IRAs will need professional guardians with the ability to make sound financial management decisions and who understand the complicated regulations and laws relating to use, gifting, and devising these benefits. These needs require more sophisticated professional guardians who are better qualified by education and experience to carry out the guardian’s duties.

   The complex eligibility rules for Medicaid, Social Security, and other public entitlement programs, as well as tax rules, and an overall understanding of investment alternatives and strategies, all dictate higher minimum educational requirements for new professional guardians. A guardian must possess reasonable oral and written communication skills and be able to (1) draft, implement, adjust, and maintain care plans, (2) understand medical alternatives, including the relative medical/guardian understanding of “No Code” orders, (3) draft petitions for instructions, (4) complete public benefit applications, (5) correspond with care providers and governmental agencies, and (6) provide complete reports to the court.

   Data to support the need for increased minimum requirements for certified professional guardians was shown by a recent study.⁴ The study investigated the relationship between professional guardian certification requirements and the likelihood and severity of sanctions. The results showed that the severity of sanctions imposed against a certified professional guardian had a statistically significant positive association with lower levels of education.⁵

   Additional data supporting the need for increased minimum certification requirements can be found in two national studies on the duties of public guardians completed in 1981 and 2005. Public guardians provide guardian services to clients using public funds. In the 1981 national study of public guardianship, public guardians tended to be either social workers or attorneys.⁶ In the 2005 national study of public guardianship, it was found that three out of four (75%) of the independent state office models of public guardianship had public guardians with at least a bachelor's degree or master's degree; 26 out of 36 (72%) of the responding division of a social service agency models of public guardianship had public guardians with at least a bachelor's degree or master's degree; and five out of six (83%) of the responding county models of public guardianship had public guardians with at least a bachelor's degree or master's degree.⁷ Based on the available research, the Board believes the prevailing national standard for professional public guardian services is at least an associate’s degree.

   Finally, a survey conducted by the Board asked certified professional guardians to articulate the duties they perform on a regular basis. The responses are daunting, as they reveal that CPGs are routinely required to make sophisticated medical, social, psychological, and financial decisions for people with whom they are not acquainted, but for whom life decisions must be made.

   Additionally, the current rule requires that a candidate hold a “Bachelor of Arts degree.” However, there is no rational reason to exclude applicants who hold a Bachelor of Science from becoming certified guardians. The suggested rule change would require a certified professional guardian applicant to have a baccalaureate degree and two years of pertinent work experience. This proposed change increases the work experience for persons with a baccalaureate degree from one year to two years.

   The requirement for a minimum qualification of an associate’s degree provides assurance that the holder has obtained a basic foundation in reading comprehension, writing and mathematics. The proposed rule change also increases the number of years of experience required from two years to four years. Combining these increased requirements with existing criteria provides greater assurance of competent performance of job duties by a guardian and protection for incapacitated persons.

4. Recommendation

   The Board carefully considered each amendment before making these suggestions. The Board’s Rules Committee worked on the amendments over the past two years and the Board considered drafts of the proposed amendments between June and September, 2007. The need for increased education and experience requirements are, and have been for some time, a weighty concern for the Board. In examining this need for increased education and experience, the Board identified the other suggested amendments that explain the necessary fitness qualifications for certified professional guardians.

   With the increase in qualifications, and clarification of the Board’s authority to implement the regulatory framework, the Board will continue to be able to fulfill its duty to ensure the competency of certified professional guardians and protect incapacitated persons.

¹ This subsection was renumbered from subsection (8) as a result of the suggested amendments.

² See Proposed Regulations Posted for Comment – New Administrative Regulations 003 at http://www.courts.wa.gov/programs_orgs/guardian/.

³ Picking a Part D Plan: Déjà vu All Over Again? (last retrieved October 3, 2007, from http://familiesusa.org/issues/prescription-drugs/publications/ - copy attached as Exhibit B.).

⁴ W. Schmidt, F. Akinci & S. Wagner, The Relationship between Guardian Certification Requirements and Guardian Sanctioning: A Research Issue in Elder Law and Policy, Behav. Sci. Law 25: 641-653 (2007)(copy attached as Exhibit C).

⁵ Id. at 649 (Though the results also indicated that the likelihood of sanctions, rather than severity of sanctions, was associated with higher levels of education).

⁶ W. Schmidt, K. Miller, W. Bell & E. New, Public Guardianship and the Elderly, Cambridge, MA: Ballinger Publishing Co. (1981), p. 169.

⁷ P. Teaster, E. Wood, N. Karp, S. Lawrence, W. Schmidt & M. Mendiondo, Wards of the State: A National Study of Public Guardianship, Lexington, KY: University of Kentucky Graduate Center for Gerontology, pp. 73-89 (March 31, 2005).