Bill Scheidler FUTURE Candidate for WA State Legislature, 26th District,

Guardian Abuse

Guardian Abuse is a problem when professional guardians abuse their wards.  Guardians are “supervised” by the courts — but in reality, there is no monitoring.   Guardian Abuse is not just a state problem — it’s a national problem.   Professional guardians are supposed to be supervised by the Certified Professional Guardian Board.    This is a Board that “certifies” — and disciplines professional guardians.    It is an entity under the WA State Supreme Court.  The Guardian Board is made up of professional guardians, judges, and attorneys.

There are state laws — RCW 71.05 and RCW 11.92 that says no one can force an IP(incapacitated person) into any type of facility against their wishes.   Yet that is what guardians and their attorneys used to do.  In July, the State Supreme Court issued an opinion stating that a professional guardian did not do wrong in not putting an IP into a facility (See Raven v. DSHS).

Now, there are some guardians who are isolating family members from loved ones.   I know of 7 individuals who had a family member isolated from them.  This includes IPs — the elderly — and disabled adults.    I asked the guardian board for help with these people and got a letter from Ms. Shirley Bondon saying the Guardian Board had SOPs (Standards of Practice guidelines) that said guardians could not do that — and they were supposed to obey them.  SOPs don’t stop guardians from isolating the IPs or disabled people from loved ones.

Several years ago, another advocate submitted some changes to the guardian board that they rejected.     There is a Seattle-area attorney (Margaret Dore) who wrote an article for submission to the WSBA in 2007 about putting guardian supervision under the Executive Dept. versus the Courts.   The article is below.

Feel free to contact me at 425-255-4340 if you have a question or a loved one has been a victim of guardian abuse.   We would love to hear from you.

Claudia Donnelly

March 2007
The Time Is Now: Guardians Should Be Licensed and Regulated Under the Executive Branch, Not the Courts

by Margaret K. Dore

With increasing numbers of Americans living longer, many are finding themselves under guardianship. The guardian appointed may be a family member or friend, or a “professional” guardian or guardianship company.

In many cases, the guardian is honest and hardworking for his ward. In other cases, the guardian abuses or exploits the ward. The exact magnitude of this problem is not known, but the names of articles in the popular press tell the story. See: Jack Leonard, Robin Fields and Evelyn Larrubia, Guardians for Profit: Justice Sleeps While Seniors Suffer; and Barry Yeoman, Stolen Lives: Thousands of Older Americans Are Being Robbed of Their Freedom, Dignity, and Life Savings by a Legal System Created for Their Protection. How Can This Happen?1

The Courts Respond

The issue of guardianship abuse has also caught the attention of the courts. The Washington State Supreme Court now oversees the “Certified Professional Guardian Program.”2 Under this program, there are two entities that directly supervise professional guardians: the Certified Professional Guardian Board, which reports to the Supreme Court, and the superior court in each county.3

The premise of this article is that this well-meaning effort to increase guardianship accountability is misplaced.  Although courts have traditionally been responsible for guardianship oversight, they are ill-suited for this function. Guardians should be licensed and regulated under the executive branch, not supervised by the courts.

The Board’s Role

The Certified Professional Guardian Board “adopts and implements regulations governing certification, minimum standards of practice, training, and discipline of professional guardians.”4 The Board does not, however, interfere with the traditional role of the superior court.5 The superior court continues to be the “main venue” for making a complaint against a guardian.6

For this reason, the Board will not ordinarily accept a complaint about a guardian unless it has first been reviewed by the superior court. The Washington Courts website states:

[C]omplaints to the Certified Professional Guardian Board (Board) that have not been reviewed by the court will ordinarily not be accepted for review . . . .7

If the superior court finds that the guardian “has failed in some way,” the finding can be forwarded to the Board with a grievance for further proceedings.8 Otherwise, the complaint will ordinarily be dismissed. The Board’s 2005 annual report provides the following example:

The family member had already addressed these concerns to the superior court, which had found the guardian’s actions to be appropriate. Therefore, the complaint was dismissed by the Standards of Practice Committee (SOPC).9

The Traditional Role of the Superior Court

With the traditional role of the superior court, the court supervises guardianship administration by supervising the guardian, its “agent.” Cf. In Re Gaddis’ Guardianship, 12 Wn.2d 114, 123, 120 P.2d 849 (1942) (“The guardian is in effect an agent of the court, and through him the court seeks to protect the ward’s interest.”)

How this works in practice is that the guardian petitions the court for approval of its management of the ward’s affairs. In King County, this is done on the motions calendar in the ex parte department. The court might be asked whether a bill should be paid or the guardian’s care plan approved.10 The superior court also approves the guardians’ accountings and investment strategies.11

A Contrast to Other Activities

The “job” of a guardian is to manage the affairs of an incapacitated person. Other entities with similar jobs are not “supervised” by courts. An example would be a nursing home. Nursing homes manage the affairs of persons not able to care for themselves. Nursing homes are regulated by the Department of Social and Health Services.12 The Department of Social and Health Services is under the executive branch.

Guardians also function as financial institutions. The larger guardianship companies provide trust and financial management services similar to a bank or trust company. For example, Guardianship Services of Seattle (GSS) describes its trust and financial management services as follows:

* The following describes the more common trusts managed by Guardianship Services of Seattle . . . .13
* Financial Management Assistance involves helping an individual . . . manage investment portfolios . . . (Emphasis added).14

Like a bank or trust company, the larger companies also handle large sums of money. GSS manages in excess of $44 million.15 Banks and trust companies are not “supervised” by courts, but regulated by the Department of Financial Institutions.16 The Department of Financial Institutions is also under the executive branch.17

Problems with Court Supervision

Little or no relevant training. A major problem with court supervision of guardians is that the typical judge or commissioner has little relevant training. Accounting, finance, and personal care are not required courses in law school. A judge or commissioner is also unlikely to have time to perform the necessary inquiry. A recent Seattle Times article quotes a local commissioner, as follows:

[The Commissioner], who handles guardian cases in King County, complained that he is expected to master complex accounting, investment strategies and what constitutes proper medical care — all while keeping cases moving. “I read them and I look for the outrageous,” he said.18

By contrast, agency personnel under the executive branch typically have specialized training. For example, examiners with the Department of Financial Institutions are required to have a degree with course work in accounting or finance (or other commensurate education or experience).19 Oversight is conducted according to an agency protocol.20 This is opposed to a busy motion calendar in which a judge or commissioner does the best he can.21

Court approval prevents further inquiry. A related problem is that once a guardian’s accounting is approved by the superior court, other entities will not usually investigate, although as noted above, there has typically been little investigation by the court. The Board will not ordinarily investigate due to its deference to the superior court.22 Other entities, e.g., a local fraud unit, will likely not investigate due to the order approving the accounting, which makes it look as if there has already been a full investigation. As set forth above, there has likely been little or no investigation.

The prohibition against ex parte contact interferes with a court’s ability to provide effective supervision. In general, successful supervision of an activity requires a close relationship between the supervisor and the person supervised. A good supervisor should also be open to receiving information and complaints from multiple sources.

This does not occur in the context of court supervision of guardians due to the prohibition against ex parte contact.23 The prohibition prevents courts and guardians from developing the necessary close relationships. It also prevents courts from learning about a guardian’s wrongdoing. Persons with information are generally prohibited from contacting the court.

The prohibition against ex parte contact is another factor which acts to prevent courts from providing effective guardianship supervision.

Complaining parties take on the risk of litigation. Another problem with court supervision is that wards or other complaining parties are generally required to make their complaints in the context of a court hearing. Meaningful participation requires the hiring of counsel. The Washington Courts website states:

By far the best way to advocate for a person who is the subject of a guardianship is to hire an attorney . . .24

If the guardian contests the complaint, the ward or other party may find themselves in litigation against the guardian. If the complaint is unsuccessful, the ward or other party may be required to pay the guardian’s fees.25 With the inherent cost of litigation, courts are often reluctant to perform an in-depth inquiry.

These factors create “chilling effects” so that complaints are not made and, if made, are not fully pursued. These factors do not exist in the usual regulatory scheme. Instead, complainants generally have immunity from liability; the agency’s investigation is usually conducted outside of a litigation context.26

How Licensing and Regulation Might Work

In other states, there are emerging programs in which oversight is provided via the executive branch. For example, California recently enacted SB 1550, which establishes the Professional Fiduciaries Bureau within the Department of Consumer Affairs.27 Idaho has a pilot program in which conservator reports will be reviewed by its Department of Finance.28

The advantage to using existing agencies is that they are already set up. On the other hand, some current agencies, such as DSHS, would seem to have a conflict of interest.29 For this reason, a stand-alone agency could be desirable. Funding could be obtained from licensing fees or from the wards’ estates so that the agency would be revenue-neutral. Agencies such as the Department of Financial Institutions are revenue-neutral.30

Conclusion

Without effective oversight, abuse of wards by their guardians will only continue. It is time to consider a different paradigm. Guardians should be licensed and regulated under the executive branch, not the courts. Other methods of third-party oversight should be investigated and explored.

Margaret K. Dore is an attorney in Seattle. Her published decisions include In Re Guardianship of Stamm, 121 Wn. App. 830, 91 P.3d 126 (2004). She is chair of the Elder Law Committee of the ABA Family Law Section. She is a former chair of the King County Bar Elder Law Section. Parts of this article are similar to “The Retirement Nightmare: Guardianship in America,” a course presentation for the ABA Family Law Section, 2005 Fall CLE Conference, and “The Case Against Court Certification of Guardians: The Case for Licensing and Regulation,”  NAELA News, Vol. 18, No. 1, February/March 2006. Ms. Dore can be contacted through her website, www.margaretdore.com. The opinions expressed in this article are the author’s and are not official or unofficial positions of the WSBA.

NOTES
1. Los Angeles Times, November 14, 2005 (www.latimes.com/news/local/lameconserve14nov14,0,3305612.story); and AARP Magazine, January/February 2004 (www.aarpmagazine.org/people/Articles/a2003-11-19-stolenlives.html). Private websites reporting guardian abuse tell a similar story. See also, www.abusiveguardianships.com, www.justiceforfloridaseniors.org, and www.victimsofguardians.net.
2. See e.g., Certified Professional Guardian Report to the Supreme Court 2003, Washington Courts website, www.courts.wa.gov/programs_orgs/guardian/?fa=guardian.ar_2003.
3. Id. and Washington Courts website, “A Grievance Against Certified Professional Guardians,” www.courts.wa.gov/committee/?fa=committee.display&item_id=697&committee_id=117.
4. Certified Professional Guardian Program, www.courts.wa.gov/programs%5Forgs/guardian.
5. Certified Professional Guardian Board Report to the Supreme Court 2003, Executive Summary, www.courts.wa.gov/programs_orgs/guardian/?fa=guardian.ar_2003.
6. File a Grievance Against a Certified Professional Guardian, www.courts.wa.gov/committee/?fa=committee.display&item_id=697&committee_id=117.
7. Id.
8. Id.
9. Washington State Certified Professional Guardian Board, 2005 Report to the Washington State Supreme Court, Appendix C, Case No. 2005-001, Washington Courts website (linked at www.courts.wa.gov/committee/?fa=committee.home&committee_id=118).
10. See e.g., In re Guardianship of Karen Weed, Snohomish County Cause No. 05-4-01493-3, “Order Approving Inventory, Budget, and Disbursements,” April 27, 2006; and In re Guardianship of Marie Charles, King County Cause No. 01-4-02852-6SEA, “Order: Approving Guardian’s Report (Care Plan and Inventory) . . .,” August 18, 2006.
11. Charles, supra; and Weed, supra (approving the guardian’s annuity purchase).
12. See e.g., RCW 18.51.040 Application for License; and DSHS website: www.aasa.dshs.wa.gov/pubinfo/housing/other/#NH.
13. Website for Guardianship Services of Seattle, a Washington State Certified Professional Guardian www.trustguard.org/Services/trusts.html.
14. www.trustguard.org/services/gss_services.htm.
15. See GSS’s website (“The aggregate market value of funds held in blocked accounts is $44,564,328.90”). (www.trustguard.org/Services/frequently_asked_questions.htm, Question No. 13).
16. See www.dfi.wa.gov/banks/list.htm.
17. See e.g.,www.dfi.wa.gov/about/director.htm (describing that the director of the Washington State Department of Financial Institutions is appointed by the governor).
18. Maureen O’Hagan, Cheryl Phillips, and Justin Mayo, “A Son Struggles to Reveal How Lawyer Was Treating His Mother,” Seattle Times, December 3, 2006. (http://archives.seattletimes.nwsource.com/cgibin/texis.cgi/web/vortex/display?slug=guardianship03m&date=20061203&query=velategui).
19. See Washington State Department of Personnel, Specification for Class of Financial Examiner 1 (13300) (linked at www.dfi.wa.gov/about/careerlisting.htm).
20. See id. (regarding “Class Series Concepts”).
21. Some superior courts utilize trained reviewers to assist the commissioner or judge. The commissioner or judge is still, however, the person making the decisions. He or she typically has little or no training in accounting matters. The accountings are, regardless, submitted on the motions calendars with tight deadlines. There is often little or no source data so that the figures presented cannot be verified.
22. Supra at § C.
23. See e.g., CJC 3(A)(4).
24. File a Grievance Against a Certified Professional Guardian, www.courts.wa.gov/committee/?fa=committee.display&item_id=697&committee_id=117.
25. See e.g., RCW 11.96A.150(1) (allowing a court to award attorneys fees from “any party to the proceedings”).
26. See e.g., RCW 4.24.510, “Communication to government agency or self-regulatory organization — Immunity from civil liability”; RCW 70.128.200 “Toll-free number for complaints — Discrimination or retaliation prohibited”; and RCW 70.128.090 “Inspections–Generally” (for adult family homes).
27. Office of the Governor Press Release, September 27, 2006 (“Governor Schwarzenegger Signs Legislation to Provide Safeguards for Vulnerable Californians under the Care of Conservators”). See http://gov.ca.gov/index.php?/print-version/press-release/4121/.
28. See Idaho Code § 31-3201G (establishing the Guardianship Pilot Project Fund under the Idaho Supreme Court), and Guardianship and Conservatorship Pilot Programs 2006 Report to Governor Butch Otter and the First Regular Session of the 59th Idaho Legislature (describing that two counties will be submitting guardianship filings to the Idaho Department of Finance for a “third-party review”). For further information, contact Co-chair Robert Aldridge, Esq. (bob@rlaldridgelaw.com).
29. DSHS’s duties include moving for the appointment of a guardian under RCW 74.34. This duty could create a conflict of interest if DSHS were also the oversight agency. There would be a lack of independence with regard to the guardians so appointed. See e.g., Guardianship of Roger Bourassa, King County Cause No. 06-4-05643-1KNT, petition filed October 17, 2006, p.3 (DSHS petitioned for the appointment of Care Planning Associates, a professional guardian).
30. See: www.dfi.wa.gov/about/default.htm (“The department is self-supporting, in that none of its operating revenues come from the state’s general tax funds. Its operating revenues are paid by the organizations and individuals it regulates”).

 

 

 

 

 

 

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Updated: March 13, 2014 — 10:16 am

6 Comments

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  1. Guardian abuse occurs because the “regulators”, and that includes the WA Supreme Court, ALLOW it to occur.

    The GAO (The US Gov Accountability Office), in a state-wide study concluded in 12 of 20 cases, the courts failed to oversee guardians once they were appointed, allowing the abuse of vulnerable seniors and their assets to continue. GAO found that guardians stole or otherwise improperly obtained $5.4 million in assets from 158 incapacitated victims, many of whom were seniors. To read the entire study click this link“Cases of Financial Exploitation, Neglect and Abuses of Seniors”

    Consider this language that is part of a lawyer’s statutory oath, RCW 2.48.210, which a lawyer swears by God that he, “will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed…” Yet it is the “legal establishment” that is raping, or is allowing the raping of the most “defenseless and oppressed” of their assets, their happiness and even their life.

    How many people must be harmed, even killed, before citizens voice their anger with our legislators and the Justices of the Supreme court?

  2. The courts refuse to oversee the crimes of a guardian because that would defeat their purpose. I believe judges get kickbacks from the corrupt guardians, otherwise they would rule pursuant to the law and not on behalf of these criminals. The courts and guardians prey off the people for mere dollars, blood money, as they have no conscience.. Guardians are for the elderly and children in divorce. In both cases, they bleed them dry – the elderly when they run out of money or die, the children until they reach 18, or after they have already bankrupt the parents and there is no longer any money in it for them, or unless they kill them off, as well..

    More accountability offices is NOT the answer. They are set up to pacify, but in actuality, watch them because they do nothing but give false hope. More laws is not the answer. Since when do judges uphold the law, especially against one of their own, a guardian ad litem, or corrupt, fraudulent attorneys. Try suing an evil guardian like I did, and in violation of all matter of law, she was given absolute quasi-judicial immunity.

    I am 70 years old and I absolutely believe that only a revolution of the people is the answer to end this courthouse destruction of innocent victims. Or, the people can wait, and these heinous criminals will get their reward in the hereafter!!!.

  3. Sharon is right on the money….excuse any pun, none intended. There is a circular pattern of judges, lawyers, guardians which prey primarily on the elderly and disabled and it is woven very tightly. What better Targets than the helpless……I have spent the better part of seven years fighting for my Autistic daughter’s legacy…I did have myself appointed her Guardian to protect her from a stranger being appointed….With the only luck I’ve had so far with this, the Supreme Court Judge (NY) handling our case was very compassionate toward us. However, I can tell you, since I am an independent I must submit a yearly report which takes me weeks to prepare.. Each and every cent is accounted for, (I was once questioned on a bill for her eyeglasses)…I hire an Accountant with background for these types of Reports and it is submitted in duplicate to two different Courts. Does a professional Guardian have to do this? Is a family member called in to participate? I don’t mind the Reports, but my real battle has been with the Probate who has protected the Executor of the Will whom I have proof has swindled hundreds of thousands of dollars from the legacy….it’s been a seven year battle. Now if my “feet can be held to this fire” what is the matter with these Professional Guardians?. Regardless of the individual cases, the Public ought to be educated, in layman’s terms, just what to expect and what can potentially happen. There should be Professional Advocacy groups holding seminars on these issues because a public educated is a public protected. . I would also like to see more Federal Government oversight eventually. The States are the beneficiaries of these Wells that don’t run dry…it is pure Corruption
    Thanks Bill for this Forum….so important!!

  4. The fraud and deception by employees with WA APS, the employees of nursing homes, attorneys who fail to investigate the truth, guardians and the people they work with them are all a menace to our society! I will not go into detail on what happened to us, but things were taken out of context, we (the family) were not allowed to give our side of the story, just accused of being horrible family members who took advantage of our Mom! We went thru hell and had no recourse! We were lied to by attorneys, and everyone involved!

    1. 1st thing YOU DO remains getting the truth ON RECORD and that being the court file under the case no
      write out a detailed affirmation of truth and go through their scatology line by line.
      You start it “under threat of perjury,I affirm :
      1.
      2.
      etc
      microsoft word starter 2010 is freely available online if u don’t already have it-get familiar with it and type it all out,
      end it with “the aforementioned is true”
      include certificate of service
      get it notarized
      hand deliver it to the clerk which IS also noted on the certificate of service as in hand delivered to room ___,then the address of the courthouse
      and WAIT for the clerk to time stamp it and WAIT to get one CERTIFIED COURT COPY-
      _____
      for what it’s worth which now is something–file grievance which will include your affirmation of truth as you flly illustrated their illegal actions and code violations- and wait for their ROUTINE DISMISSAL-
      appeal it and get another dismissal-
      THEN DO WHAT MR SCHEIDLER is doin’

      http://ppjg.me/2014/01/23/charges-filed-against-executive-director-commission-on-judicial-conduct-and-associated-director-wsba/#comment-93948

      _______
      then FILE USC violations and include SSA if any on and on
      ____________

      do it.

      they have been getting away WITH MURDER for too long now and NEXT WE WILL CHALLENGE THE PROBATE CODES ON GUARDIANSHIP AS IT ALL REMAINS UNCONSTITUTIONAL.
      ____________________
      there is NO immunity to them established in CT second circuit court case Gross v. Rell, 585 F.3d 72-
      finally established that THE ROLE OF ANY COURT APPOINTEE IS TO WORK FOR THEIR CLIENT–so get them from their as well.

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