Proposed Regulations Posted for Comment
Proposed Amended Standards of Practice 400 series
Published for Comment: Proposed Amendment of
Standards of Practice
Approved for Comment September 13, 2010
The Certified Professional Guardian Board will begin consideration of the amendments to the following regulations at its meeting on January 10, 2011. The comment period has been extended from the normal 30 day period and will expire on December 17, 2010.
Standards of Practice
Table of Contents
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Standards
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Description
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Page Number
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400
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General
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401
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Guardian’s Duty to Court
· Comply with Washington law and court order
· Act within authority
· Familiar with laws, rules, regulations
· Seek legal advice
· Provide timely, complete, accurate reports
· Nominate standby guardian
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402
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Guardian’s Relationship to Family and Friends of Incapacitated Person and to Other Professionals
· Work cooperatively with others in authority
· Consider views of others with knowledge of IP
· Seek independent evaluations
· Guardian is ultimately responsible
· Not disclose sensitive information
· Acknowledge personal limits
· Develop and maintain working knowledge of services
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403
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Self-Determination of Incapacitated Person
· Protect personal and economic interests, foster growth
· Consult with IP when appropriate
· Defer to IP’s residual capacity
· Provide information to IP
· Provide copies of material filed with court
· Incorporate IP’s values
· Evaluate alternatives, choose least restrictive
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404
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Contact with Incapacitated Person
· Guardians of Person only
- Assess appearance and conditions
- Maintain communication with caregivers
- Participate in planning decisions
- Request development of plans
- Examine documents
· Guardians of Estate only
· Background checks for employees
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405
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General Decision Standards
· Substituted Judgment Standard
· Best interest standard
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406
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Conflicts of Interest
· Exhibit highest degree of loyalty and trust
· No self-interest in management
· Avoid conflict of interest and appearance/disclose
· No direct services—housing, medical or therapeutic
· Gifts from IP
· Payment of fees by another
· Protect against infringement by third parties
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407
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Residential Decisions
· Ensure least restrictive environment
· Honor cultural and social needs
· Effectuate IP’s preferences
· Know law re limits on authority re residential decisions
· Removal of IP from home
· Placement selection
· Relocation consultations
· Evaluate alternatives
· Review alternatives regularly
· Monitor placement
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408
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Medical Decisions
· Provide informed consent
· Code status decisions and informed consent
· Withholding/withdrawing life-sustaining treatment
· Promote health of IP
· Available at all times
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409
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Financial Management
· Avoid self interest and assure competent management
- Determine IP’s prior wishes
- Allow IP to manage funds to his/her ability
· Know investment law/hire competent professionals
· Maintain blocking, bonding, and insurance
· Maintain with goal of providing for IP
· When to consider needs of IP’s dependents
· Petition for gifting authority
· Apply for public benefits
· Exercise prudence in investment
- Not allow assets to sit idle
- Consider tax consequences
- Consider sustainability
- Consider gain
- Consider costs
- Consider IP’s historical pattern
· No commingling of funds/consolidation
· No borrowing from IP
· Protect and preserve estate
· Comply with RCW 11.88.150 at IP’s death
· Provide for insurance coverage
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410
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Guardian Fees and Expenses
· Entitled to reasonable compensation--Factors
- Necessity for service
- Time required
- Degree of skill and experience needed
- Cost of alternative
· Documented, reasonable, for benefit of IP
- Date and time spent
- Service performed
- Who performed service
- Expenses incurred
- Subject matter of calls, etc.
· Duties not conditioned upon payment
· Disclosure to court and parties of fees
· Billings if guardian also an attorney
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411
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Changes in Circumstances/Limitation/Termination
· Affirmative obligation to respond to changes
· Seek out basis for termination or limitation
· Request court action
· Assist IP in terminating or limiting
· Report when more authority needed
· Report if protection of estate needed
· Report if protection of person needed
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412
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Sale or Purchase of Guardianship Practice
· Guidelines for sale of practice
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Standards of Practice
400 General Standards of Practice
The following standards apply to all Certified Professional Guardians and Certified Professional Guardian agencies. These standards apply only to the degree that the court has granted a guardian the authority contemplated in a given standard.
Whenever the term “guardian” is used in these Standards, it is meant to refer to a certified professional guardian or to a certified professional guardian agency.
Whenever the term “court” is used is in these Standards, it is meant to refer to the Superior Court which has authority over the guardianship in which the guardian has been appointed.
Whenever the term “incapacitated person” (IP) is used, it is meant to refer to the incapacitated person for whom the guardian has been appointed under RCW 11.88.
Whenever the term “notice parties” is used, it is meant to refer to those people who have requested special notice of proceedings under RCW 11.92.150.
A guardian is a fiduciary. A fiduciary has the duty to act primarily for another's benefit. The Guardian shall carry out his or her duties carefully and honestly. The Guardian shall act selflessly and with undivided loyalty to the incapacitated person.
A guardian cannot delegate his or her decision-making authority to another person or agency. This does not preclude employing others to carry out the guardian’s decision.
401 General Guardian’s Duty to Court
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 perform duties and discharge obligations in accordance with applicable Washington law and the requirements of the court.
401.2 401.4 The guardian shall not act outside of the authority granted by the court and shall seek direction from the court as necessary. If the guardian is aware of a court order that may be in conflict with these standards, the guardian shall bring the conflict to the attention of the court and seek the court’s direction.
401.3 401.1The guardian shall at all times be thoroughly familiar with RCW 11.88, RCW 11.92, GR 23, these standards, and, any other regulations or laws statutes which govern the conduct of the guardian in the management of the 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.
401.4 401.2 The guardian shall seek legal advice as necessary to know how the law applies to specific decisions.
401.5 401.3 The guardian shall provide reports, notices, and financial accountings that are timely, complete, accurate, understandable, in a form acceptable to the court, and consistent with the statutory requirements. See, for example, RCW 11.92.040 and RCW 11.92.043. The financial accounting shall include information as to the sustainability of the current budget when expenditures exceed income during the reporting period.
401.6 401.17 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.
402 Guardian’s Relationship to Family and Friends of Incapacitated Person and to Other Professionals.
402.1 401.8 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.
402.2 401.9 The guardian, where appropriate, shall cooperate with and carefully consider the views and opinions of professionals, relatives, and friends who are knowledgeable about the incapacitated person.
402.3 401.10 The guardian shall seek independent professional evaluations, assessments, and opinions when necessary to identify the incapacitated person's needs and best interests.
402.4 401.11 The guardian shall recognize that his or her decisions are open to the scrutiny, of other interested parties and, consequently, to criticism, and challenge of others. Nonetheless, s Subject to orders of the court, the guardian alone is ultimately responsible for decisions made by the guardian on behalf of the incapacitated person.
402.5 401.13 A guardian shall not disclose personal or other sensitive information about the incapacitated person to third parties except: (a) when necessary and relevant appropriate to the needs of the incapacitated person or (b) as required by these standards or other applicable laws or when directed by the court or the CPG Board.
401.6 402.6 The guardian must know and acknowledge personal limits of knowledge and expertise and shall assure that qualified persons (e.g., attorneys, accountants, stockbrokers, real estate agents, physicians), provide services to the incapacitated person to the extent appropriate.
402.7 The guardian shall develop and maintain a working knowledge of the services, providers, and facilities available in the community. The guardian shall coordinate and monitor services needed by the incapacitated person to ensure that the incapacitated person is receiving the appropriate care and treatment.
403 Self-Determination of Incapacitated Person.
403.1 401.5 The guardian shall protect the personal and economic interests of the incapacitated person and foster growth, independence, and self-reliance.
403.2 401.7 Whenever appropriate feasible a guardian shall consult with the incapacitated person, and shall treat with respect, the feelings, values, and opinions of the incapacitated person. The guardian shall acknowledge the residual capacity and preferences of the incapacitated person to participate in or make some decisions.
403.3 401.12 When appropriate possible, the guardian will defer to an incapacitated person's autonomous residual capacity to make decisions.
403.4 403.9 The guardian shall, whenever appropriate 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: (a) the status of investments and operating accounts, (b) the costs and disbursements necessary to manage the incapacitated person's estate, and (c) medical and other personal information related to the care of the incapacitated person.
403.5 403.10 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.
403.6 The guardian shall determine the extent to which the incapacitated person identifies with particular ethnic, religious, and cultural values and shall incorporate those values in the guardian’s decision-making to the extent appropriate.
403.7 The guardian shall evaluate the alternatives that are available and choose the one that best meets the needs of the incapacitated person while placing the least restrictions on the incapacitated person’s freedom, rights, and ability to control his or her environment.
404 Contact with the Incapacitated Person
404.1 401.15 Guardians of the Person shall have meaningful in-person contact with their clients as needed, generally no less than monthly. If contact is not made monthly, the reasons for less frequent contact shall be documented and included in the periodic reporting to the court. Living in a staffed residential facility or at home with a paid caregiver is not sufficient justification for reducing the frequency of in person contact. 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.
404.1.1 The guardian shall assess the incapacitated person's physical appearance and condition and assess the appropriateness of the incapacitated person's current living situation and the continuation of existing services, taking into consideration all aspects of social, psychological, educational, direct services, health and personal care needs, as well as the need for any additional services.
404.1.2 The guardian must maintain regular communication with service providers, caregivers, and others attending to the incapacitated person.
404.1.3 The guardian must participate in care or planning decisions concerning the residential, educational, vocational, or rehabilitation program of the incapacitated person.
404.1.4 The guardian shall request that each extended-care professional service provider develop an appropriate service plan for the incapacitated person and take appropriate action to ensure that the service plans are being implemented.
404.1.5 The guardian shall ensure that the personal care plan is being properly followed by examining charts, notes, logs, evaluations, and other documents regarding the incapacitated person at the place of residence and at any program site.
404.2 401.16 Guardians of the Estate only shall maintain meaningful in-person contact with their clients generally no less than quarterly absent court order, but in any event, at a frequency as appropriate and as necessary to verify the individual's condition and status and that financial arrangements are appropriate appropriateness of financial arrangements.
404.3 Each certified professional guardian or certified professional guardian agency shall conduct a criminal history check on any guardian or agency employees who come into contact with the person or estate of an incapacitated person prior to any contact. No guardian or agency shall knowingly allow an employee who has been convicted of a felony or has been adjudicated by any court or administrative agency of a having engaged in abuse, neglect or financial exploitation of a vulnerable adult or child to have contact with the person or estate of an incapacitated person.
405 General Decision Standards
All decisions and activities of the guardian shall be made according to the applicable decision standard.
405.1 402.1 The primary standard for decision-making is the Substituted Judgment Standard based upon the guardian’s determination of the incapacitated person’s competent preferences, i.e. what the incapacitated person would have decided when he or she had capacity. 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 when the incapacitated person had capacity.
405.2 402.2 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 and defer to an incapacitated person’s residual capacity to make decisions.
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