IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO GR 23(d) AND (e)

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ORDER NO. 25700-A-785

     The Professional Guardian Board having recommended the adoption of the proposed amendments to GR 23(d) and (e), and the Court having approved the proposed amendments for publication;

     Now, therefore, it is hereby

     ORDERED:

     (a) That pursuant to the provisions of GR 9(f), the proposed amendments as attached hereto are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Courts' websites in January 2004.

     (b) The purpose statement as required by GR 9(d), is published solely for the information of the Bench, Bar and other interested parties.

     (c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2004. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Lisa.Bausch@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

     DATED at Olympia, Washington this 6th day of November 2003.

	For the Court           Gerry L. Alexander
	CHIEF JUSTICE

     It is the Board's recommendation that both of these sections be revised so that guardians are only required to disclose removal by a court order when the removal is "for cause".

     The suggested rule change requires an applicant or certified guardian to disclose to the Board when a court has removed a guardian when a judgment has been entered against the professional guardian as a result of the performance of services as a guardian, or when there has been a finding by the court that the guardian has committed malfeasance, nonfeasance, misfeasance, a felony, or a crime of moral turpitude.

     A guardian may be removed by a court for many reasons that would not be considered a removal for cause. For example, when an incapacitated person moves out-of-state to be closer to family members, and the guardianship is transferred to the incapacitated person's new county of residence, then the Washington guardian will be removed. Another example of a removal for reasons other than cause is when a guardian is removed because there is a personality conflict between the guardian and the incapacitated person, or the guardian and a family member, even though the guardian may be performing his or her duties in a satisfactory manner. The guardian often acquiesces in a removal for this reason.

     The Board's obligation to incapacitated persons, to the courts and to the public to allow only the certification of qualified individuals, will still be met under the rule change. The rule change will remove an unnecessary burden from the guardians, who are currently required to report every removal by court order, and from the Board, which is the recipient of information which is not significant to its purpose, as a result of the current over inclusive wording of the rule.

     Finally, the Board suggests that the numbering of the subsections under GR 23(e) be revised to be internally consistent with the subsection numbering of the remainder of GR 23.

     (d) Certification Requirements. Applicants, Certified Professional Guardians, and Certified Agencies shall comply with the provisions of Chapter 11.88 and 11.92 RCW. In addition, individuals and agencies must meet the following requirements.

     (1) Individual Certification. An individual applicant

shall:

     (i) Be at least 18 years of age;

     (ii) Be of sound mind;

     (iii) Have no felony or misdemeanor convictions involving moral turpitude;

     (iv) Possess a high school diploma or equivalency (GED) and five years experience working in a discipline pertinent to the provision of guardianship services, such as legal,

financial, social service, or health care; or an Associate of Arts degree and three years experience working in a discipline pertinent to the provision of guardianship services, such as legal, financial, social service, or health care; or a Bachelor of Arts degree and one year of experience working in a discipline pertinent to the provision of guardianship services, such as legal, financial, social service, or health care; and

     (v) Have completed the mandatory certification training.

     (2) Agency Certification. Agencies must meet the following additional requirements:

     (i) All officers and directors of the corporation must meet the qualifications of Chapter 11.88.020 RCW for guardians;

     (ii) Each agency shall have at least two (2) individuals in the agency certified as professional guardians, whose residence or principal place of business is in Washington State and who are so designated in minutes or a resolution from the Board of Directors; and

     (iii) Each agency shall file and maintain in every guardianship court file a current designation of each certified professional guardian with final decision-making authority for the incapacitated person or their estate.

     (3) Training Program and Examination. Applicants must satisfy the Board's training program and examination requirements.

     (4) Insurance Coverage. In addition to the bonding requirements of Chapter 11.88 RCW, applicants must be insured or bonded at all times in such amount as may be determined by the Board and shall notify the Board immediately of cancellation of required coverage.

     (5) Financial Responsibility. Applicants must provide proof of ability to respond to damages resulting from acts or omissions in the performance of services as a guardian. Proof of financial responsibility shall be in such form and in such amount as the Board may prescribe by regulation.

     (6) Application and Oath. Applicants must execute and file with the Board an approved application under oath.

     (7) Fees. Applicants must pay fees as the Board may require by regulation.

     (8) Denial of Certification. The Board may deny certification of an individual or agency based on the following criteria:

     (i) Removal as guardian by a court order where;

     (ii) a) Judgment has been entered against the professional guardian as a result of the performance of services as a guardian;

     (iii) b) There is a Ffinding by the court that the professional guardian is guilty of has committed malfeasance, nonfeasance, misfeasance, a felony, or crime of moral turpitude;

     (iv) (ii) Any adjudication of the types specified in RCW 43.43.830, and RCW 43.43.842;

     (v) (iii) Finding by the court that the professional guardian has violated the guardian's duties to the incapacitated person or their estate; and

     (vi) (iv) Pending or final professional licensing or disciplinary board actions or findings of violations.

     (e) Disclosure Requirements. A Certified Professional Guardian or Certified Agency shall disclose to the Board upon application and on a continuing basis:

     (i) (1) Removal as guardian by a court order where;

     (ii) (a) Judgment has been entered against the professional guardian as a result of the performance of services as a guardian;

     (iii) (b) There is a Ffinding by a court that the professional guardian is guilty of has committed malfeasance, nonfeasance, misfeasance, a felony, or crime of moral turpitude;

     (iv) (2) Any adjudication of the types specified in RCW 43.43.830, and RCW 43.43.842;

     (v) (3) Finding by a court that the professional guardian has violated the guardian's duties to the incapacitated person or their estate;

     (vi) (4) Pending or final professional licensing or disciplinary board actions or findings of violations;

     (vii) (5) Residential or business moves or changes in employment; and

     (viii) (6) Names of Certified Professional Guardians they employ or who leave their employ.

     (f) - (m) [No changes.]

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

     Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

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