Ethics Advisory Opinions

Opinion 2005-001 Professional Guardian Petitioning for Appointment Rev. Jan 2010

 

CERTIFIED PROFESSIONAL GUARDIAN BOARD
ETHICS ADVISORY OPINION
Professional Guardian Petitioning for Appointment
 
 
OPINION #: 2005-001
Date   March 13, 2006, Revised January 11, 2010
 
Brief restatement of question(s) posed:
When may a Certified Professional Guardian petition for appointment of oneself as guardian?
 
Directly applicable SOP’s, statutes and other law or standards:
·      403.1 The guardian shall avoid self-dealing, conflict of interest, and the appearance of a conflict of interest. Self-dealing or conflicts 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.
 
·      RCW 11.88.030 (1) Any person or entity may petition for the appointment of a qualified person, trust company, national bank, or nonprofit corporation authorized in RCW 11.88.020 as the guardian or limited guardian of an incapacitated person. No liability for filing a petition for guardianship or limited guardianship shall attach to a petitioner acting in good faith and upon reasonable basis.
 
·      The facts alleged in a petition for guardianship are ordinarily verified under penalty of perjury by the petitioner.
 
·      GR 24 (a)(1) Practice of law defined as “Giving advice or counsel to others as to their
legal rights or the legal rights or responsibilities of others for fees or other consideration.”
 
Analogous standards and values (e.g. legal, medical):
The practice of nominating oneself as guardian automatically raises the appearance of self-dealing. 
 
Comments:
The Certification Board recognizes that there are two public policy objectives underlying this opinion. The first is the public policy need to assure that individuals in need of a guardian have access to that service. The second public policy objective is to assure that the practice of the profession by certified professional guardians results in conduct which is not self-dealing and does not involve the actual or appearance of a conflict of interest. This ethical opinion is intended to recognize the inherent tension between these two public policy objectives and to reconcile those tensions in a manner that provides for the highest ethical practices while making available guardian services to those who need them. 
 
The intent of this opinion is not to discourage the filing of the petitions in good faith. It is the intent of this opinion however, to assure the transparency of the proceedings to the extent that any conflicts or appearances of conflict which a certified professional guardian may have are disclosed and that steps are taken to negate both the real and appearance of self-serving.
 
Professional guardians have a clear and immediate conflict of interest in nominating themselves to be appointed guardian and to be paid from the estate of the Incapacitated Person. A certified professional guardian should avoid whenever possible initiating a petition for appointment of oneself as guardian.
 
Ordinarily the facts necessary to complete a petition for guardianship are not available at first hand to a certified professional guardian but are provided by professionals interested in having a guardian appointed. 
 
In many situations, and in particular in the case of alleged incapacitated persons who have limited or no estate, there is no other person with sufficient expertise and interest in the alleged incapacitated person to file a petition for guardianship. Referral sources such as facility staff or government employees who are able to identify the need for guardianship may have institutional limitations on their ability to become formally involved as a petitioner for the guardianship.
 
There are circumstances in which a care provider or other entity with whom the certified professional guardian has a close personal or professional relationship files a petition for guardianship using an attorney provided by the certified professional guardian, or files a petition for guardianship with the active assistance of the certified professional guardian, with the intention that the certified professional guardian will become guardian at the conclusion of the proceeding. In such circumstances, the certified professional guardian has an obligation to disclose to the Court by Affidavit or Declaration the nature of that relationship.
 
This opinion acknowledges that the Court with local jurisdiction is the final arbiter as to the need for a guardianship and the appointment of the guardian. The petitioning certified professional guardian should be aware of the Court’s ability to require the petitioner to pay any or all fees and costs of proceedings at the Court’s discretion, including the fees of the guardian ad litem.
 
Opinion: The following are considered to be best practices for Certified Professional Guardians: 
 
The certified professional guardian should inform referral sources as to how guardianships are processed and should offer to refer interested parties to counsel if necessary. However, petitioners for individuals with no close family or friends, limited assets, living in long term care environments, and/or with complicated care needs are often not available.   As a result, the practical reality of the care environment is such that the availability of petitioners for those in need of a guardian is limited or non-existent. Therefore, the limited and qualified initiation of a guardianship petition by a certified professional guardian is acceptable under certain circumstances. 
 
Specifically, if the certified professional guardian determines (a) a guardianship is in the interests of the Alleged Incapacitated Person; (b) there are no less restrictive alternatives; and (c) there is no other person willing to act as petitioner; then the certified professional guardian may act as petitioner in a guardianship. 
 
In initiating such petition the certified professional guardian shall,
 
1.    Consistent with state statute, engage in an investigation and document that investigation in an Affidavit or Declaration to the court the following pre-filing efforts:
 
            a. identifying any alternative nominees and providing information as to why alternate nominees who are available are not suitable or able to serve;
 
            b. providing a written request from the party requesting the guardianship which identifies the basis for the request and the basis for the decision by that party not to petition;
 
            c. providing documentation from third parties of the facts set out in the petition. Such documentation can include statements from care providers, family members, friends, or others with knowledge of the circumstances of the incapacitated person.
 
            d. providing documentation that the certified professional guardian has met with the alleged incapacitated person, the results of that meeting, and an opinion by the certified professional guardian of the capacity issues faced by the alleged incapacitated person.
 
2.    Disclose in the Affidavit or Declaration to the court any relationship the certified professional guardian may have with a care facility and any practice the care facility may have involving the referral of residents to the certified professional guardian.
           
 
  

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