WSR 07-22-080

RULES OF COURT

STATE SUPREME COURT


[ November 1, 2007 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO GR 23 )

)

ORDER

NO. 25700-A-881


The Certified Professional Guardian Board having recommended the adoption of the proposed amendment to GR 23, 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 amendment as attached hereto is to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Office of the Administrator for the Court's websites in January, 2008.

(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, 2008. 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 1st day of November, 2007.
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 twofold: (1) to address issues not addressed by GR 23 which the Board has encountered over the past several years in implementing the rule; and (2) to increase education and experience requirements for persons wishing to practice as certified professional guardians in this state.

Introduction

An RCW 11.88 guardian is a person appointed by the superior court to make decisions on behalf of an incapacitated person. A guardian may be appointed as the "guardian of the person", or as the "guardian of the estate", or to fulfill both roles on behalf of the incapacitated person. See Chapter 11.88 RCW. Whether the guardian is appointed to fill one or both roles, the responsibilities of the guardian are substantial. The duties of the guardian of the person include making decisions regarding the healthcare, residence, and day-to-day social life of the incapacitated person. Guardians of the person make decisions about income and investments, expenditures, and estate planning for the incapacitated person. All of these decisions are made under the overall supervision of the superior court by means of regular reporting by the guardian. See RCW 11.92.

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. To qualify for appointment by the superior court, a professional guardian must meet the certification requirements established by the administrator for the courts. See RCW 11.88.020(1).

The certification requirements for professional guardians, set forth in GR 23 (1)(d), have not changed since the effective date on January 25, 2000, of GR 23. Subsections (i), (ii), and (iii), repeat the first three statutory criteria for all guardians (professional and nonprofessional) set forth in RCW 11.88.020(1): a guardian must be at least 18 years of age, be of sound mind and have no felony or misdemeanor convictions involving moral turpitude. Subsection (iv) mandates minimum education and experience requirements and subsection (v) mandates certification training.

I. Assessment of Fitness to Practice as a Certified Professional Guardian.

A. Applicant's Ability to Manage His or Her Financial Affairs.

Suggested Amendments to GR 23 (d)(1) and (d)(8)(vi).

The Board is vested with the authority to investigate an applicant for certification as a professional guardian to determine whether the applicant meets certification requirements. GR 23 (c)(2)(ix). Currently, General Rule 23 requires that applicants for certification comply with the provisions governing guardians contained in Chapters 11.88 and 11.92 RCW, and meet additional specific requirements. GR (d)(1).

The specific requirements are that the applicant be an adult of sound mind, have no convictions of crimes involving moral turpitude, and have completed required education. GR 23 (d)(1). To facilitate the Board's investigation of the applicant's ability to perform the guardian's fiduciary duties to account for, protect and preserve the guardianship estate (RCW 11.92.040), the Board proposes adding the requirements that the applicant submit a personal credit report and disclose whether he or she has filed for bankruptcy. See suggested amendments to GR 23 (d)(1) and (d)(8)(vi).

This information will provide the Board with some of the applicant's history of managing their own financial affairs. An applicant's credit history is a useful tool in assessing the applicant's ability to manage another person's financial affairs. The legislature has recognized that the Department of Financial Institutions, which licenses escrow officers, has the same need to review an individual's credit and civil judgment history to assess an applicant's qualifications for an escrow agent license. Escrow agents perform similar, but far less intrusive, fiduciary duties than professional guardians -- both must protect and preserve their clients' funds, see RCW 18.44.031 (5) and (6), but a certified professional guardian's obligations far exceed those of escrow agents, since the guardian must gather together all assets, safeguard the client's funds for the client's lifetime, and make prudent expenditure and investment decisions.

B. Disclosure - Applicants and Certified Professional Guardians and Agencies.

Suggested New Subsection GR 23 (d)(8) and Suggested Amendments to GR 23 (d)(9) and GR 23(e).

Currently, GR 23(e) requires certified professional guardians and agencies to disclose to the Board, on a continuing basis: commission of crimes, acts of moral turpitude, licensing or disciplinary actions, adjudications specified in RCW 43.43.830 and .842, judgments or findings related to a guardian's performance, address and employment changes, and changes in certified professional guardians in their employ. All of this information is important and necessary for the Board to perform its duty to ensure professional guardians are qualified for certification.

The Board's proposed amendments separate the disclosure requirements for applicants and currently certified professional guardians and agencies, and provide a limited time period within which disclosure must occur, rather than relying on disclosure on a continuing basis. The Board proposes that disclosure occur within 30 days of any of the listed occurrences, and also requires an annual disclosure statement from certified professional guardians and agencies.

In addition, the Board proposes to expand the current disclosure requirement of judgments or findings related to the applicant's performance as a guardian, to include those related to his or her performance as a fiduciary. Failure to perform fiduciary duties while acting in any fiduciary capacity, such as a trustee, under a power of attorney, or as a representative payee, is an important determinant of whether the individual is fit for certification as a professional guardian.

New subsection GR 23 (d)(8) sets forth the disclosure requirements for applicants, and proposed amended section GR 23(e) sets forth disclosure requirements for certified professional guardians and agencies. For consistency, the criteria for denial of certification in GR 23 (d)(9)1 have been amended to reflect the same provisions set forth in the disclosure requirements.

1 This subsection was renumbered from subsection (8) as a result of the suggested amendments.

C. Conflicts of Interest.

Suggested New Subsection GR 23 (c)(6).

The Board currently has no rule on when it is appropriate for a member to disqualify himself or herself from participating in Board decisions due to a conflict of interest. Because the Board is not only a policy-making Board, but also an adjudicatory decision-maker on discipline and licensing matters, it is vital that the Board's decisions be made fairly and impartially. The suggested new subsection in GR 23 (c)(6) is based on the standard in the Code of Judicial Conduct (CJC) for when a judicial officer should disqualify himself or herself from making a decision on a disputed matter. See CJC 3 (d)(1)(a). A similar standard is used by the Washington State Bar Association's Disciplinary Board in determining when a member of that Board has a conflict of interest. See ELC Rule 2.3 (h)(1)(A).

D. Leave of Absence.

Suggested New Subsection GR 23 (c)(7).

The Board currently has no procedure to address how to proceed when a Board member is the subject of a disciplinary investigation. The Washington State Bar Association's Disciplinary Board operates under procedures set forth in the Rules for Enforcement of Lawyer Conduct (ELC) 2.3 (b)(5) for a leave of absence in such circumstances. The suggested new subsection at GR 23 (c)(7) allows the Board to adopt regulations providing for such a leave of absence. The suggested new subsection also provides that a Board member may no longer serve on the Board if the Board has imposed a final disciplinary sanction on the Board member.

E. Denial for Lack of Requisite Moral Character.

Suggested New Subsection GR 23 (d)(9)(vi).

A guardian must be an individual of the highest integrity, due to the authority the guardian wields over the life of the incapacitated person. Should any facts come to the Board's attention during the course of the Board's investigation of a person's application for certification that cause the Board to doubt that the applicant possesses the necessary good moral character or is otherwise unqualified to work as a professional guardian, the Board should have the authority to deny certification. New subsection GR 23 (d)(9)(vi) gives the Board that authority. This subsection is based on the rule setting forth the qualifications for admission to practice law in Washington, which also requires that applicants possess good moral character. See APR 5(a).

II. The Board's Authority to Implement the Regulatory Framework.

Suggested Amendments to GR 23(c).

The suggested amendments to GR 23(c) address issues related to Board service and administration that are not currently addressed in the rule:

Subsection (c)(1)(i), specifying the areas of expertise from which Board members should be drawn, updates the term "guardian advocates" to "advocates for incapacitated persons" to more accurately describe this area of expertise. The proposed amendment also provides that no more than one-third of the Board membership shall be practicing professional guardians so that Board members are drawn from wide areas of expertise related to the work of the Board and the Board avoids the appearance of guardians having undue influence over the regulatory process.
Subsection (c)(1)(ii) limits service to (3) - three-year terms, not to exceed nine consecutive years.
Subsection (c)(1)(iv) provides that vacancies will be filled for any unexpired term.
Use of the term "disciplinary" in subsections (c)(2)(viii) & (xii) in referring to the proceedings and sanctions that may result from a grievance process provides consistency throughout the rule and the Board's regulations.
Additional subsections (c)(4), (6) and (7) address: expense reimbursement, conflict of interest, and leave of absence.
Subsection GR 23 (c)(2)(xi) relates to the disclosure of confidential information and has been amended to authorize the Board to adopt regulations pertaining to the disclosure of records. This will allow the Board to regularly update its disclosure provisions to comply with changes in public disclosure laws applicable to other similar state-licensed professionals. The Board's proposed public records regulations include the confidentiality protections currently in GR 23, as well as provisions for release of records. The proposed regulations are posted for comment on the Board's website2 and are slated for adoption at the Board's January 14, 2008 meeting. (A copy of the proposed regulations are attached as Exhibit A.).
2 See Proposed Regulations Posted for Comment - New Administrative Regulations 003 at http://www.courts.wa.gov/programs_orgs/guardian/.

III. Increased Education and Experience Requirements for Certified Professional Guardians Are Needed to Ensure Professional Guardians Are Capable of Performing Their Duties on Behalf of Incapacitated Persons.

Suggested Amendments to GR 23 (d)(1)(iv) & (v).

The Certified Professional Guardian Board has concluded that there is a need to increase the education and experience requirements for certification as a professional guardian under GR 23 (d)(1)(iv). The Board is aware that in 2006 the Supreme Court declined to adopt suggested changes to the education and experience requirements for certification. The Court's action led to over a year of discussion and debate by the Board regarding the necessity of the suggested changes. The result is that the Board respectfully requests that the Court once again consider the rationale for those changes and publish the suggested changes for comment. We believe that those most familiar with guardianships will champion better-qualified certified professional guardians.

The current certification rules require only that applicants have a high school diploma, or GED, and five years' experience working in a discipline pertinent to the provision of guardianship services; or an Associate of Arts degree and three years' experience working in a discipline pertinent to the provision of guardianship services; or a Bachelor of Arts degree and one year of experience working in a discipline pertinent to the provision of guardianship services. The Board proposes that the minimum qualification requirement be changed to require an associate's degree and four years' experience working in a discipline pertinent to providing guardian services. Applicants with a bachelor's degree would be required to have two years of pertinent experience.

Increasing the qualifications to become certified distinguishes certified professional guardians from volunteer and non-professional guardians through education and experience. The Board seeks to help protect incapacitated persons and to provide assurance to courts, families, and the public that members of the profession possess adequate education and experience to properly address the complex issues faced by guardians. Using the term "professional" for individuals who lack specialized knowledge or academic preparation is misleading. The duties of a certified guardian are varied and complex given the guardian's absolute fiduciary responsibility for the incapacitated person's health and welfare. On a daily basis, guardians make investment, health care, residential and other decisions that govern the lives of the incapacitated persons and, often, also their deaths.

In 1997, Washington State took a leadership position nationwide when it began the process of establishing certification requirements for professional guardians in response to the Legislature's desire to assure quality services provided by professional guardians. The Legislature directed the administrator for the courts to establish certification requirements by January 1, 1999. (Chapter 312, Laws of 1997.) The Supreme Court established provisional certification requirements by January 1, 1999 and adopted the current certification requirements effective January 25, 2000. At that time, there were many people interested in becoming certified guardians who had been working as court-appointed guardians for years. They had accumulated many years of experience in the field and the Board had no wish to bar those people from becoming certified, despite their lack of educational credentials. The Board recommended to the Supreme Court that a level be set for educational requirements that allowed those highly-experienced guardians to become certified.

Now, all of those experienced guardians have been certified under the current GR 23 certification requirements. The new applicants do not have years of qualifying experience as actual court-appointed guardians. Instead, applicants often meet only the bare minimum requirement of experience in a discipline pertinent to the provision of guardian services, such as legal, financial, social service or heath care, with no actual experience as a guardian. These applicants, even after they become certified, need significant continuing education to learn how to be guardians. It has become apparent to the Board that these applicants need stronger educational and experience backgrounds to ensure that they are able to learn and fulfill the varied and complex duties of a certified professional guardian. Requiring a minimum of an associate's degree is not unreasonable. Community colleges offer coursework at a reasonable cost throughout Washington.

Over the past ten years, it has become apparent to the Board and to the public that the expanded lifestyle choices available for incapacitated persons demand that professional guardians possess more advanced knowledge and decision-making ability. The options available to incapacitated persons are the result of societal changes. Advances in medicine have made health-care decisions more complex. Simply choosing between Medicare's prescription drug programs, a decision required for every senior citizen, requires significant analysis and decision-making ability.3 The Medicaid application process alone is confusing and complicated. Often, we find that guardians do not have a clue about how to secure payments even for the incapacitated person's housing or medical care. In addition, the next generation of retirees, baby boomers who have retirement income, pensions, and IRAs will need professional guardians with the ability to make sound financial management decisions and who understand the complicated regulations and laws relating to use, gifting, and devising these benefits. These needs require more sophisticated professional guardians who are better qualified by education and experience to carry out the guardian's duties.

3 Picking a Part D Plan: Dj vu All Over Again? (last retrieved October 3, 2007, from http://familiesusa.org/issues/prescription-drugs/publications/ - copy attached as Exhibit B.).

The complex eligibility rules for Medicaid, Social Security, and other public entitlement programs, as well as tax rules, and an overall understanding of investment alternatives and strategies, all dictate higher minimum educational requirements for new professional guardians. A guardian must possess reasonable oral and written communication skills and be able to (1) draft, implement, adjust, and maintain care plans, (2) understand medical alternatives, including the relative medical/guardian understanding of "No Code" orders, (3) draft petitions for instructions, (4) complete public benefit applications, (5) correspond with care providers and governmental agencies, and (6) provide complete reports to the court.

Data to support the need for increased minimum requirements for certified professional guardians was shown by a recent study.4 The study investigated the relationship between professional guardian certification requirements and the likelihood and severity of sanctions. The results showed that the severity of sanctions imposed against a certified professional guardian had a statistically significant positive association with lower levels of education.5

4 W. Schmidt, F. Akinci & S. Wagner, The Relationship between Guardian Certification Requirements and Guardian Sanctioning: A Research Issue in Elder Law and Policy, Behav. Sci. Law 25: 641-653 (2007) (copy attached as Exhibit C).

5 Id. at 649 (Though the results also indicated that the likelihood of sanctions, rather than severity of sanctions, was associated with higher levels of education).

Additional data supporting the need for increased minimum certification requirements can be found in two national studies on the duties of public guardians completed in 1981 and 2005. Public guardians provide guardian services to clients using public funds. In the 1981 national study of public guardianship, public guardians tended to be either social workers or attorneys.6 In the 2005 national study of public guardianship, it was found that three out of four (75%) of the independent state office models of public guardianship had public guardians with at least a bachelor's degree or master's degree; 26 out of 36 (72%) of the responding division of a social service agency models of public guardianship had public guardians with at least a bachelor's degree or master's degree; and five out of six (83%) of the responding county models of public guardianship had public guardians with at least a bachelor's degree or master's degree.7 Based on the available research, the Board believes the prevailing national standard for professional public guardian services is at least an associate's degree.

6 W. Schmidt, K. Miller, W. Bell & E. New, PUBLIC GUARDIANSHIP AND THE ELDERLY, Cambridge, MA: Ballinger Publishing Co. (1981), p. 169.

7 P. Teaster, E. Wood, N. Karp, S. Lawrence, W. Schmidt & M. Mendiondo, WARDS OF THE STATE: A NATIONAL STUDY OF PUBLIC GUARDIANSHIP, Lexington, KY: University of Kentucky Graduate Center for Gerontology, pp. 73-89 (March 31, 2005).

Finally, a survey conducted by the Board asked certified professional guardians to articulate the duties they perform on a regular basis. The responses are daunting, as they reveal that CPGs are routinely required to make sophisticated medical, social, psychological, and financial decisions for people with whom they are not acquainted, but for whom life decisions must be made.

Additionally, the current rule requires that a candidate hold a "Bachelor of Arts degree." However, there is no rational reason to exclude applicants who hold a Bachelor of Science from becoming certified guardians. The suggested rule change would require a certified professional guardian applicant to have a baccalaureate degree and two years of pertinent work experience. This proposed change increases the work experience for persons with a baccalaureate degree from one year to two years.

The requirement for a minimum qualification of an associate's degree provides assurance that the holder has obtained a basic foundation in reading comprehension, writing and mathematics. The proposed rule change also increases the number of years of experience required from two years to four years. Combining these increased requirements with existing criteria provides greater assurance of competent performance of job duties by a guardian and protection for incapacitated persons.

IV. Recommendation

The Board carefully considered each amendment before making these suggestions. The Board's Rules Committee worked on the amendments over the past two years and the Board considered drafts of the proposed amendments between June and September, 2007. The need for increased education and experience requirements are, and have been for some time, a weighty concern for the Board. In examining this need for increased education and experience, the Board identified the other suggested amendments that explain the necessary fitness qualifications for certified professional guardians.

With the increase in qualifications, and clarification of the Board's authority to implement the regulatory framework, the Board will continue to be able to fulfill its duty to ensure the competency of certified professional guardians and protect incapacitated persons.


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; guardianship 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 Disciplineary 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, or regulation, or other requirement governing the conduct of professional guardians authority. The Board may take disciplinary action and impose disciplinary sanctions based on upon a 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 the statute, duty, standard of practice, rule, regulation, or other requirement 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 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) 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 scores;

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.

(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,s of th,e Board, and review panel, or and disciplinary meetings prior to filing of a formal disciplinary complaint.

(xiii) Fees. The Board shall establish and collect fees in such amounts as are necessary to carry out 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) (xiv) Immunity from Liability. No cause of action against the Board, its members, or agents, including hearing officers appointed by the Board or its Chair, 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 were not in good faith shall be on the party so asserting it.

(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, such as 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) 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.

(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 an high school diploma or equivalency (GED) associate's degree from an accredited institution and at least four five full 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 baccalaureate degree from an accredited institution and at least two one full years' of experience working in a discipline pertinent to the provision of guardianship services, such as legal, financial, social service, or health care; and;

(v) The experience required by this rule must include decision-making or the use of independent judgment on behalf of client(s) 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) Provide a personal credit report from a recognized credit reporting bureau satisfactory to the Board;

(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 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 ever filed for bankruptcy;

(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.

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

(i) Removal as guardian by a court order where Failure to satisfy certification requirements provided in section (d) of this rule;

(aii) The existence of a jJudgment has been entered against the guardian applicant arising froms a result of the applicant's performance of services as a guardian fiduciary;

(biii) There is a A court finding by the a court that the guardian applicant has violated its fiduciary duties or committed malfeasance, nonfeasance, misfeasance, a felony or any crime involving of moral turpitude;

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

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

(iv) Pending or final professional 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 upon application within 30 days of occurrence and on a continuing basis:

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

(ai) The existence of a Jjudgment has been entered against the professional guardian arisings a result of from the professional guardian's performance of services as a guardian fiduciary;

(bii) There is a A court finding by a court that the professional guardian violated its fiduciary duties, or has committed malfeasance, nonfeasance, misfeasance, a felony, or any crime of involving moral turpitude;

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

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

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

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

(6vi) 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) Provisional Certification. The Board may adopt and implement regulations permitting provisional certification of professional guardians and the initial certification of successful applicants.

(hg) 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.

(mh) 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.]

[Proposed amendments October 15, 2007.]

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.

Washington State Code Reviser's Office