Proposed Rules Archives

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

(A) Purpose: The purposes of the suggested amendments are to: (1) clarify the experience requirement for certification of a professional guardian; and (2) reduce the amount of experience required for applicants with graduate level degrees from two years to one year.

Introduction

General Rule (GR) 23 establishes the standards and criteria for the certification of professional guardians as defined by RCW 11.88.008. GR 23(a). A guardian is a person appointed by the superior court to make decisions on behalf of an incapacitated person. 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.

The Certified Professional Guardian Board (Board) is responsible for reviewing applications for certification of professional guardians and recommending to the Supreme Court certification of those applicants who qualify. GR 23(c)(2)(ii) & (v). Applicants are required to have an associate’s degree and at least four years of “experience working in a discipline pertinent to the provision of guardianship services,” or a bachelor’s degree (or higher) and at least two years of experience. GR 23(d)(iv).

Over the past year, the Board has taken note that the applicants for certification are now presenting a greater breadth of experience, and in many instances a higher level of formal education. The Board believes this change in the pool of candidates resulted from the advent of the University of Washington Guardianship Certificate Program. In 2007, the Board partnered with the University of Washington in building a certificate program that became the mandatory education for certification of professional guardians in 2008. The 90-hour certificate program provides comprehensive instruction in the fiduciary responsibilities and skills needed to practice effectively as a professional guardian. The first graduating class was composed of 29 students with backgrounds in geriatric case management, accounting, nursing home administration, law, mental health, social work, and financial management.

In reviewing the experience submitted by recent applicants, the Board found that although certain individuals demonstrated experience evidencing the desired fiduciary skills, it was not clear whether that experience would fall within the description of qualifying experience in GR 23 (d)(1)(iv) & (v). Review of the experience requirement in light of the UW program was the main topic of discussion at the Board’s two-day planning meeting in June¹ and resulted in the following suggested amendments to GR 23 clarifying the type of experience that qualifies for certification.²

I. Experience Evidencing Skills That Are Transferable to the Provision of Guardianship Services Should Qualify for Certification.

The importance of the experience requirement is that it provides the hands-on experience required to develop and demonstrate fiduciary skills. Evidence of fiduciary skills does not necessarily require having served in a fiduciary capacity, but should demonstrate that the applicant has experience exercising judgment related to estate and personal care management to ensure an individual is prepared to take on the responsibilities of acting on behalf of an incapacitated person.

The main difficulty with the current GR 23 experience requirement is that it requires experience making decisions or using independent judgment on behalf of others, which can be interpreted as actually requiring an applicant to have experience as a guardian. GR 23(d)(1)(v).

GR 23(d)(1)(iv) & (v) currently provide:

(1) Individual Certification. The following requirements apply to applicants and do not apply to currently certified professional guardians, except as stated in subsection (d)(1)(vii). An individual applicant shall:
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(iv) Possess an associate’s degree from an accredited institution and at least four full years’ experience working in a discipline pertinent to the provision of guardianship services, or a baccalaureate degree from an accredited institution and at least two full years’ experience working in a discipline pertinent to the provision of guardianship services;

(v) The experience required by this rule must include decision-making or the use of independent judgment on behalf of others in the area of legal, financial, social services or healthcare or other disciplines pertinent to the provision of guardianship services;

The experience requirement should more accurately express the fiduciary skills that demonstrate competence to perform effectively as a professional guardian. Requiring experience in decision-making “on behalf of others” could limit qualifying experience to fiduciaries, such as attorneys-in-fact, and might exclude relevant experience where fiduciary skills might be developed, such as work as an investment advisor or care planner. To remove this limitation, the Board suggests amending GR 23(d)(1)(v) by defining the requirement as “experience in which the applicant has developed skills that are transferable to the provision of guardianship services,” and replacing the phrase “on behalf of others” with “for the benefit of others, not limited to incapacitated persons”:

(v) The experience required by this rule is experience in which the applicant has developed skills that are transferable to the provision of guardianship services and must include decision-making or the use of independent judgment on behalf for the benefit of others, not limited to incapacitated persons, in the area of legal, financial, social services or healthcare or other disciplines pertinent to the provision of guardianship services;

These clarifications remove the implication that one needs experience as a fiduciary where decision-making was exercised on behalf of another, and recognizes the value of the breadth of skills an applicant may possess that demonstrates the necessary skill to assume the fiduciary responsibility of a professional guardian.

II. The Experience Requirement for Applicants With Graduate Level Degrees Should Be Reduced From Two Years to One Year. 

In addition to reviewing the type of experience qualifying for certification, the Board also considered the amount of experience required for those applicants with a graduate level degree. Recognizing the improvement in the mandatory education in the fundamentals of guardianship provided by the UW Guardianship Certificate Program, and the knowledge and skills inherent in attaining a graduate level degree, the Board determined that one year of experience is sufficient for applicants with a graduate level degree and suggests the following amendment to GR 23(d)(1)(iv):

(iv) Possess an associate’s degree from an accredited institution and at least four full years’ experience working in a discipline pertinent to the provision of guardianship services, or a baccalaureate degree from an accredited institution and at least two full years’ experience working in a discipline pertinent to the provision of guardianship services, or a Masters, J.D., Ph.D., or equivalent advanced degree from an accredited institution and at least one year experience working in a discipline pertinent to the provision of guardianship services;

IV. Recommendation

The Board carefully considered each amendment before making these suggestions. In addition to the extended discussion at the Board’s two-day planning meeting in June, the Board sought and considered comments on proposed regulations interpreting the certification experience requirement at its August and September meetings. The suggested amendments to GR 23 recognize the value of the breadth of skills an applicant may possess and allow the Board to continue to fulfill its duty to ensure the competency of certified professional guardians and protect incapacitated persons.

¹ The minutes from the June 19-20, 2009, Board meeting are at Attachment A, and are available at: http://www.courts.wa.gov/committee/?fa=committee.display&item_id=1103&committee_id=118

² In addition to the suggested amendments to GR 23, the Board has since adopted regulations interpreting the experience requirement. See Attachment B, CPGB Regulations 102.3 - 102.7; also available at: http://www.courts.wa.gov/committee/?fa=committee.child&child_id=27&committee_id=117#P13_432.