WSR 00-03-018

RULES OF COURT

STATE SUPREME COURT


[ January 6, 2000 ]

IN THE MATTER OF THE ADOPTION NEW GR 23 - PROFESSIONAL GUARDIAN RULE )

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)

ORDER

NO. 25700-A-675


The Professional Guardian Oversight Board having recommended the adoption of New GR 23 - Professional Guardian Rule, and the Court having determined that the proposed new rule will aid in the prompt and orderly administration of justice and further determined that an emergency exists which necessitates an early adoption;

Now, therefore, is hereby

ORDERED:

(a) That the new rule as attached hereto is adopted.

(b) That pursuant to the emergency provisions of GR 9(i), the new rule will be published expeditiously and become effective upon publication.

DATED at Olympia, Washington this 6th day of January, 2000.
Guy, C.J.


Smith, J.



Johnson, J.



Madsen, J.


Ireland, J.


Talmadge, J.


Bridge, J.



PROPOSED NEW 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 of 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. 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; guardianship advocates; courts; state agencies; and those employed in medical, social, health, financial, or other fields pertinent to guardianships. The term for a member of the Board shall be three years. 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. 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.

(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 Discipline. 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, or regulation. The Board may impose sanctions upon a finding of violation. 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 the duty, standard of practice, rule, regulation, or statute 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 designated 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) Confidentiality. Information in the Board's possession shall be disclosed upon request, except that the following information shall not be disclosed without a court order:

a) Personal information, including, but not limited to, home address, financial information, medical information, or Social Security number;

b) Records required by law, regulation, or court order to be confidential;

c) Records of reviews or investigations by the Board which did not result in sanctions;

d) Professional guardian examination questions, answers, or sources;

e) Records of investigations shall remain confidential except for documents showing the results of the investigation where there has been an appeal; and

f) Records of disciplinary actions shall remain confidential except all formal complaints and the process after filing the formal complaint shall be public.

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

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

(xiv) Immunity from Liability. No cause of action against the Board, its members, or agents shall accrue in favor of a professional guardian or any other person arising from any act taken pursuant to this rule, provided that the Board or individual acted in good faith. The burden of proving that the acts were not taken in good faith shall be on the party asserting it.

(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;

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

(iii) Finding by the court that the professional guardian is guilty of malfeasance, nonfeasance, misfeasance, a felony, or crime of moral turpitude;

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

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

(vi) 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) Removal as guardian by a court order;

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

(iii) Finding by a court that the professional guardian is guilty of malfeasance, nonfeasance, misfeasance, and felony, or crime of moral turpitude;

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

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

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

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

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

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

(g) Provisional Certification. The Board may adopt and implement regulations permitting provisional certification of professional guardians and the initial certification of successful applicants.

(h) 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.

(i) Expenses of the Board. Members of the Board shall not be compensated for their services. Consistent with the Office of Financial Management rules, Board members shall be reimbursed for their 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 expenses of the board.

(j) Administration. The Office of the Administrator for the Courts (OAC) shall provide administrative support to the Board, and may contract with agencies or organizations to carry out the Board's administrative functions.

(k) 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.

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

Washington State Code Reviser's Office