Ethics Advisory Opinions

Opinion 2005-003 Preappointment Conduct

CERTIFIED PROFESSIONAL GUARDIAN BOARD
ETHICS ADVISORY OPINION

Preappointment Conduct

OPINION NUMBER # 2005- 003

Date:  November 13, 2006

Brief Restatement of Question(s) posed:

Should a certified professional guardian (CPG) provide services to an alleged incapacitated person (AIP) after a petition for the appointment of a guardian has been filed, or immediately prior to the filing of such a petition, prior to a determination of incapacity by the court, where no contractual or legal  relationship existed between the certified professional guardian and the AIP prior to the filing of a guardianship petition, and the guardian expects to be compensated for those services?

Directly applicable standards of practice (SOP’s), statutes, and other law or standards:

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

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.

401.1  The guardian shall at all times be thoroughly familiar with RCW 11.88, RCW 11.92, General Rule (GR) 23, and any other regulations or statutes which govern the conduct of the guardian in the management of affairs of an incapacitated person.

RCW 11.88.005  Legislative intent:  It is the intent of the legislature to protect the liberty and autonomy of all people of this state, and to enable them to exercise their rights under the law to the maximum extent, consistent with the capacity of each person.  The legislature recognizes that people with incapacities have unique abilities and needs, and that some people with incapacities cannot exercise their rights or provide for their basic needs without the help of a guardian.  However, their liberty and autonomy should be restricted through the guardianship process only to the minimum extent necessary to adequately provide for their own health or safety, or to adequately manage their financial affairs.

RCW 11.88.030 (1):  A petition for guardianship or limited guardianship shall state:…….(i)  A description of any alternate arrangements previously made by the alleged incapacitated person, such as trusts or powers of attorney, including identifying any guardianship nominations contained in a power of attorney, and why a guardianship is nevertheless necessary.

RCW 11.88.045(5)  During the pendency of an action to establish a guardianship, a petitioner or any person may move for temporary relief under chapter 7.40 RCW, to protect the alleged incapacitated person from abuse, neglect, abandonment, or exploitation, as those terms are defined in RCW 74.34.020, or to address any other emergency needs of the alleged incapacitated person…..

RCW 11.88.090 [ The Guardian ad litem shall have the following duties..][to ascertain]

(5)(c)(ii) The steps the proposed guardian intends to take or has taken to identify and meet the needs of the alleged incapacitated person;

(5)(e) to investigate alternate arrangements made or which might be created, by or on behalf of the alleged incapacitated person, such as revocable or irrevocable trusts, durable powers of attorney, or blocked accounts; whether good cause exists for any such arrangements to be discontinued; and why such arrangements should not be continued or created in lieu of a guardianship;

(5)(f)  To provide the court with a written report which shall include the following:

            (iv) a description of any alternative arrangements previously made by the alleged incapacitated person or which could be made, and whether and to what extent such alternatives should be used in lieu of a guardianship, and if the guardian ad litem is recommending discontinuation of any such arrangements, specific findings as to why such arrangements are contrary to the best interest of the alleged incapacitated person;

(9)  The court appointed guardian ad litem shall have the authority to move for temporary relief under chapter 7.40 RCW to protect the alleged incapacitated person from abuse, neglect, abandonment, or exploitation, as those terms are defined in RCW 74.34.020m or to address any other emergency needs of the alleged incapacitated person.  Any alternative arrangement executed before filing the petition for guardianship shall remain effective unless the court grants the relief requested under chapter 7.40RCW, or unless, following notice and a hearing at which all parties directly affected by the arrangement are present, the court finds that the alternative arrangement should not remain effective. 

            RCW 74.34  Abuse of Vulnerable Adults

                        .005(1)  Some adults are vulnerable and may be subjected to abuse, neglect, financial exploitation, or abandonment by a family member, care provider, or other person who has a relationship with the vulnerable adult;

                        .005(6)  The department must provide protective services in the least restrictive environment appropriate and available to the vulnerable adult.

Analysis

            Guardianships are commonly sought in situations in which there is an immediate problem affecting a principal prior to the decision by a Court as to whether or not the person is, in fact, incapacitated.  Certified Professional Guardians are often asked to develop and implement a plan of care in such situations which precede a decision by the Court as to the need for the establishment of a guardianship.   

            Certified professional guardians commonly offer a spectrum of services which are recognized by statute as less restrictive alternatives to guardianships.  Some of these services require the written consent of the principal, such as powers of attorney, creation of a Trust, signatures on consent forms relating to health care, and signatures and agreements in regards to contracts and financial service agreements. 

            Some less restrictive alternatives may not necessarily require the written  agreement of the principal.  Situations in which such agreement(s) commonly occur include competent acceptance by the principal of the provision of care management and in-home assistance services.

Opinion

            At any time, including the period immediately preceding or subsequent to the filing of a petition for the appointment of a guardian, certified professional guardians (CPG) are encouraged to provide forms of assistance that are least restrictive and that have the potential to avoid the need for a guardianship when that assistance is consented to by the principal, provided that the principal has the requisite capacity to consent and, if needed, access to legal counsel.  Forms of assistance often needed include arranging for in-home care, home maintenance, and assistance in organizing and paying bills.      

When a CPG is entering into a formal legal relationship with a principal, such as a living trust or power of attorney, the CPG should assure that the principal has the benefit of independent legal counsel before entering the relationship.  A CPG who is also an attorney should not prepare or assist in the preparation of power-of-attorney, living trust, a Will, or similar legal documents which appoint themselves to a fiduciary relationship with the principal.        

During the period immediately preceding or subsequent to the filing of a petition for the appointment of a guardian  there is a conflict of interest or the appearance of a conflict of interest and self dealing when any person enters into an agreement for services with an alleged incapacitated person that requires  consent.  While recognizing that the alleged incapacitated person has the legal capacity to enter into contracts until a guardian is appointed or otherwise restricted at the time a guardianship is established, the certified professional guardian should exercise caution when entering into any arrangement with the alleged incapacitated person immediately preceding or subsequent to the filing of a guardianship petition.    

During the period immediately preceding to or subsequent to the filing of a petition for the appointment of a guardian, the CPG may be asked by family or friends of the principal, or may contract with family or friends of the principal, to provide case management assistance such as help with living arrangements and in-home care, or assistance with immediate financial matters such as the payment of rent or utility bills, during the period immediately preceding or subsequent to the filing of a guardianship petition.  The CPG should decline to provide such services unless the principal has the capacity to consent to the services or the court has authorized the guardian to provide services.  In such a circumstance, the principal’s acceptance and/or cooperation with services can be reflective of the principal’s consent.   

Any fees that are charged by the certified professional guardian should be carefully documented.  No fees should be accepted from the funds of the principal subsequent to the filing a petition for the appointment of a guardian unless approved by the court in the same manner as guardian fees. 

The certified professional guardian should avoid the appearance of assuming the formal duties of a guardian in advance of appointment.  The certified professional guardian should not marshal assets, become a signature to financial accounts, make medical decisions or financial commitments, or otherwise engage in the activities commonly associated with the powers of a guardian for an alleged incapacitated person subsequent to the filing of a petition for the appointment of a guardian or during the period immediately preceding the filing of such petition.