WSR 10-01-030

RULES OF COURT

STATE SUPREME COURT


[ December 3, 2009 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENT TO GR 23-RULE FOR CERTIFYING PROFESSIONAL GUARDIANS )

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ORDER

NO. 25700-A-941


The Certified Professional Guardian Board having recommended the adoption of the proposed amendment to GR 23-Rule for Certifying Professional Guardians, and the Court having approved the proposed amendment for publication;

Now, therefore, it is hereby

ORDERED:

(a) That pursuant to the provisions of GR 9(g), 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 Court's websites in January 2010.

(b) The purpose statement as required by GR 9(e) 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, 2010. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Camilla.Faulk@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 3rd day of December, 2009.
For the Court

Gerry L. Alexander
CHIEF JUSTICE

GENERAL RULES (GR)

RULE 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.


1The 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

2In 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.


GR 23

Rule for Certifying Professional Guardians



(a) Purpose and Scope. This rule establishes the standards and criteria for the certification of professional guardians as defined by RCW 11.88.008 and prescribes the conditions of and limitations upon their activities. This rule does not duplicate the statutory process by which the courts supervise guardians nor is it a mechanism to appeal a court decision regarding the appointment or conduct of a guardian.

(b) Jurisdiction. All professional guardians who practice in the state of Washington are subject to these rules and regulations. Jurisdiction shall continue whether or not the professional guardian retains certification under this rule, and regardless of the professional guardian's residence.

(c) Certified Professional Guardian Board.

(1) Establishment.

(i) Membership. The Supreme Court shall appoint a Certified Professional Guardian Board ("Board") of 12 or more members. The Board shall include representatives from the following areas of expertise: professional guardians; attorneys; advocates for incapacitated persons; courts; state agencies; and those employed in medical, social, health, financial, or other fields pertinent to guardianships. No more than one-third of the Board membership shall be practicing professional guardians.

(ii) Terms. The term for a member of the Board shall be three years. No member may serve more than three consecutive full three-year terms, not to exceed nine consecutive years, including any unfilled term. Terms shall be established such that one-third shall end each year. All terms of office begin October 1 and end September 30 or when a successor has been appointed, whichever occurs later.

(iii) Leadership. The Supreme Court shall designate the Chair of the Board. The Board shall designate the Vice-Chair, who shall serve in the absence of or at the request of the Chair.

(iv) Vacancies. Any vacancy occurring in the terms of office of Board members shall be filled for the unexpired term.

(2) Duties and Powers.

(i) Applications. The Board shall process applications for professional guardian certification under this rule. The Board may delay or deny certification if an applicant fails to provide required basic or supplemental information.

(ii) Standards of Practice. The Board shall adopt and implement policies or regulations setting forth minimum standards of practice which professional guardians shall meet.

(iii) Training Program. The Board shall adopt and implement regulations establishing a professional guardian training program.

(iv) Examination. The Board may adopt and implement regulations governing the preparation and administration of certification examinations.

(v) Recommendation of Certification.

The Board may recommend certification to the Supreme Court. The Supreme Court shall review the Board's recommendation and enter an appropriate order.

(vi) Denial of Certification. The Board may deny certification. If the Board denies certification, it shall notify an applicant in writing of the basis for denial of certification and inform the applicant of the appeal process.

(vii) Continuing Education. The Board may adopt and implement regulations for continuing education.

(viii) Grievances and Disciplinary Sanctions. The Board shall adopt and implement procedures to review any allegation that a professional guardian has violated an applicable statute, fiduciary duty, standard of practice, rule, regulation, or other requirement governing the conduct of professional guardians. The Board may take disciplinary action and impose disciplinary sanctions based on findings that establish a of violation of an applicable statute, duty, standard of practice, rule, regulation or other requirement governing the conduct of professional guardians. Sanctions may include decertification or lesser remedies or actions designed to ensure compliance with duties, standards, and requirements for professional guardians.

(ix) Investigation. The Board may investigate to determine whether an applicant for certification meets the certification requirements established in this rule. The Board may also investigate to determine whether a professional guardian has violated any statute, duty, standard of practice, rule, regulation, or other requirement governing the conduct of professional guardians.

(x) Authority to Conduct Hearings. The Board may adopt regulations pertaining to the orderly conduct of hearings.

a) Subpoenas. The Chair of the Board, Hearing Officer, or a party's attorney shall have the power to issue subpoenas.

b) Orders. The Chair or Hearing Officer may make such pre-hearing or other orders as are necessary for the orderly conduct of any hearing.

c) Enforcement. The Board may refer a Subpoena or order to the Supreme Court for enforcement.

(xi) Disclosure of Records. The Board may adopt regulations pertaining to the disclosure of records in the Board's possession.

(xii) Meetings. The Board shall hold meetings as determined to be necessary by the chair. Meetings of the Board will be open to the public except for executive session, review panel, or disciplinary meetings prior to filing of a disciplinary complaint.

(xiii) Fees. The Board shall establish and collect fees in such amounts as are necessary to support the duties and responsibilities of the Board.

(3) Board Expenses. Board members shall not be compensated for their services. Consistent with the Office of Financial Management rules, Board members shall be reimbursed for actual and necessary expenses incurred in the performance of their duties. All expenses shall be paid pursuant to a budget submitted to and approved by the Supreme Court. Funds accumulated from examination fees, annual fees, and other revenues shall be used to defray Board expenses.

(4) Agency. Hearing officers are agents of the Board and are accorded rights of such agency.

(5) Immunity from Liability. The Board, its members, or agents, including duly appointed hearing officers, shall enjoy quasi-judicial immunity if the Supreme Court would have immunity in performing the same functions.

(6) Conflict of Interest. A Board member should disqualify himself or herself from making any decisions in a proceeding in which his or her impartiality might reasonably be questioned, including but not limited to, when the Board member has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding.

(7) Leave of Absence. The Board may adopt regulations specifying that a Board member who is the subject of a disciplinary investigation by the Board must take a leave of absence from the Board. A Board member may not continue to serve as a member of the Board if the Board or Supreme Court has imposed a final disciplinary sanction on the Board member.

(8) Administration. The Administrative Office of the Courts (AOC) shall provide administrative support to the Board and may contract with agencies or organizations to carry out the Board's administrative functions.

(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. 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:

(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 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;

(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;

(vi) Have completed the mandatory certification training.

(vii) Applicants enrolled in the mandatory certification training on September 12, 2008, and who satisfactorily complete that training, shall meet the certification requirements existing on that date, or the date the applicant submitted a complete application for certification, whichever date is earlier, and not the requirements set forth in this rule.

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

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

(8) Disclosure. An applicant for certified professional guardian or certified agency shall disclose upon application:

(i) The existence of a judgment against the applicant arising from the applicant's performance of services as a fiduciary;

(ii) A court finding that the applicant has violated its duties as a fiduciary, or committed a felony or any crime involving moral turpitude;

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

(iv) Pending or final licensing or disciplinary board actions or findings of violations;

(v) The existence of a judgment against the applicant within the preceding eight years in any civil action;

(vi) Whether the applicant has filed for bankruptcy within the last seven years. Disclosure of a bankruptcy filing within the past seven years may require the applicant or guardian to provide a personal credit report from a recognized credit reporting bureau satisfactory to the Board;

(vii) The existence of a judgment against the applicant or any corporation, partnership or limited liability corporation for which the applicant was a managing partner, controlling member or majority shareholder within the preceding eight years in any civil action.

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

(i) Failure to satisfy certification requirements provided in section (d) of this rule;

(ii) The existence of a judgment against the applicant arising from the applicant's performance of services as a fiduciary;

(iii) A court finding that the applicant has violated its fiduciary duties or committed a felony or any crime involving moral turpitude;

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

(v) Pending or final licensing or disciplinary board actions or findings of violations;

(vi) A Board determination based on specific findings that the applicant lacks the requisite moral character or is otherwise unqualified to practice as a professional guardian;

(vii) A Board determination based on specific findings that the applicant's financial responsibility background is unsatisfactory.

(10) Designation/Title. An individual certified under this rule may use the initials "CPG" following the individual's name to indicate status as "Certified Professional Guardian." An agency certified under this rule may indicate that it is a "Certified Professional Guardian Agency" by using the initials "CPGA" after its name. An individual or agency may not use the term "certified professional guardian" or "certified professional guardian agency" as part of a business name.

(e) Guardian Disclosure Requirements.

(1) A Certified Professional Guardian or Certified Agency shall disclose to the Board in writing within 30 days of occurrence:

(i) The existence of a judgment against the professional guardian arising from the professional guardian's performance of services as a fiduciary;

(ii) A court finding that the professional guardian violated its fiduciary duties, or committed a felony or any crime involving moral turpitude;

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

(iv) Pending licensing or disciplinary actions related to fiduciary responsibilities or final licensing or disciplinary actions resulting in findings of violations;

(v) Residential or business moves or changes in employment; and

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

(2) Not later than June 30 of each year, each professional guardian and guardian agency shall complete and submit an annual disclosure statement providing information required by the Board.

(f) Regulations. The Board shall adopt regulations to implement this rule.

(g) Personal Identification Number. The Board shall establish an identification numbering system for professional guardians. The Personal Identification Number shall be included with the professional guardian's signature on documents filed with the court.

(h) Ethics Advisory Opinions.

(1) The Board may issue written ethics advisory opinions to inform and advise Certified Professional Guardians and Certified Agencies of their ethical obligations.

(2) Any Certified Professional Guardian or Certified Agency may request in writing an ethical advisory opinion from the Board. Compliance with an opinion issued by the Board shall be considered as evidence of good faith in any subsequent disciplinary proceeding involving a Certified Professional Guardian or Certified Agency.

(3) The Board shall publish opinions issued pursuant to this rule in electronic or paper format. The identity of the person requesting an opinion is confidential and not public information.

(i) Existing Law Unchanged. This rule shall not expand, narrow, or otherwise affect existing law, including but not limited to, Title 11 RCW.


[Adopted effective January 25, 2000; amended effective April 30, 2002; amended effective April 1, 2003; September 1, 2004, amended effective January 13, 2009.]

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 error in the above material occurred in the copy filed by the State Supreme Court and appears in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office