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The Case Against Court Certification of Guardians; the Case for Independent Third Party Oversight (continued from page 23) 4. Court supervision requires complaining parties to take on the risk of litigation Another problem with court supervision of guardians is that the ward or other complaining party is required to take on the risk of litigation just to make the complaint. This situation may require the complaining party to hire an attorney. He or she may possibly also be required to pay the guardian’s fees if the complaint is deemed to lack merit. 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, however, exist in the usual regulatory scheme. Good faith complainants generally have immunity from liability. 19 Any investigation is generally conducted outside of litigation. 20 F. Certification of Professional Guardians by the Supreme Court With certification of professional guardians, the flawed model of court supervision of guardianship administration is locked in place. An additional problem is that through certification, the Supreme Court’s imprimatur is placed on private individuals and companies whose activities are different from those of the Court. At present, the qualifications for these persons are also, minimal. 21 Yet they are certified by the Supreme Court similar to the admission of attorneys to the State Bar. There is the potential for the public to be misled as to the actual qualifications of the persons certified. 22 Another problem is the potential disqualification of the Supreme Court. If a litigant brings a grievance against a guardian through the Professional Guardian Certification Program, it would seem that the Court could later be disqualified to hear the same matter on review. G. How Licensing and Regulation Might Work In some states, there are current proposals for licensing and regulation of guardians under the executive branch. In California, for example, there is a pending bill to license conservators under the Department of Consumer Affairs. 23 In Idaho, there is a pilot program in which conservator reports will be reviewed by the Idaho Department of Financial Institutions. 24 In Washington State, guardians could be regulated under the Department of Financial Institutions. Indeed, the authorizing statute appears to already provide jurisdiction. 25 The advantage to using existing agencies is that they are already set up. On the other hand, guardianships involve unique issues, such that a stand alone agency under the executive branch could be desirable. Funding could possibly be obtained from licensing fees or from the wards’ estates, so that the agency would be revenue neutral. 26 H. Conclusion Court supervision of guardianship administration puts courts and guardians in a principal-agent relationship, i.e., on the “same side” vis a vis the other parties. This structure is not only ineffective for guardian oversight, it disables the normal functioning of the courts. The reported abuse and exploitation of wards by their guardians will continue unless there is effective regulation and oversight of those guardians. Court certification of guardians is, 24 however, not the answer. It is time to consider a different paradigm. Guardians should be licensed and regulated under the executive branch, not the Supreme Court. Other methods of third party oversight should be investigated and explored. Endnotes 1 AARP MAGAZINE, January/February 2004 (http://www.aarpmagazine.org/ people/Articles/a2003-11-19- stolenlives.html). See also: Wendy Wendland-Bowyer Who’s Watching the Guardians?, DETROIT FREE PRESS, May 24, 2000; Carol D. Leonnig et al, Under Court, Vulnerable Became Victims, WASHINGTON POST, June 15, 2003; Paul Rubin, Checks and Imbalances (How the State’s Leading Private Fiduciary Helped Herself to the Funds of the Helpless), PHOENIX NEW TIMES, June 15, 2000; Denise M. Topolnicki, The Gulag of Guardianship, MONEY MAGA- ZINE, March 1989; DIANE G. ARMSTRONG, THE NIGHTMARE RETIREMENT: HOW TO SAVE YOURSELF FROM YOUR HEIRS AND PROTECTORS (Prometheus Books, 2000); and www.retirementnightmare.com. 2 In Washington State, the Supreme Court is the State’s highest court. The Washington Supreme Court’s “Professional Guardian Certification Program” is described at http://www.courts.wa.gov/programs_orgs/pos_guardian/. 3 See e.g., http://www.courts.wa.gov/pro grams_orgs/pos_guardian/?fa=pos _guardian.boardlst. 4 The Arizona Supreme Court Fiduciary Certification Program is described on the Arizona Supreme Court’s website at www.supreme.state.az.us/fiduc/gen info.htm. 5 For example, on November 11, 2004, the National College of Probate Judges’ Conference in Colorado Springs featured a seminar titled: Guardianship Certification: What, Why and How. 6 See e.g., In Re Guardianship of Loren Stamm, King County Cause No. 01-4-05323-7 SEA, Orders entered on September 16, 2002 and December 11, 2002. (continued on page 25)
The Case Against Court Certification of Guardians; the Case for Independent Third Party Oversight (continued from page 24) 7 Cf. In re Guardianship of Lasky, 776 P.2d 695, 697 (Wash. App. 1989); and Matter of Guardianship of Ingram, 689 P.2d 1363 (Wash. 1984). 8 In Washington State, the Department of Corrections has that function under the executive branch. See: http://www.doc. wa.gov/general/aboutus.htm. 9 See also: National Guardianship Association, Standards of Practice (www.guardianship.org/associations/2543/files/STANDARD.pdf); Washington State Certified Professional Guardian Program Standards of Practice, http://www.courts.wa.gov/programs_orgs/pos_guardian/?fa=pos _guardian.standard. 10 Cf. website for Guardianship Services of Seattle, a Washington State Certified Professional Guardian (www.trustguard. org/services/gss_services.htm) (describing its fiduciary and wealth management services); and Washington Department of Financial Institutions website (www.dfi.wa.gov/banks/trusts.htm ) (“Trust companies and departments provide fiduciary services and wealth management”). 11 See, e.g., Washington State Department of Financial Institutions (http://www.dfi.wa. gov/about.htm and http://www.dfi.wa.gov/banks/ list.htm); Idaho Department of Finance (http://finance. idaho.gov/); and Federal Deposit Insurance Corporation (www.fdic.gov). 12. With professional guardians, the administrative body is the Administrative Office of the Courts, the board is the Certified Professional Guardian Board. With attorneys, the administrative body is the Washington State Bar Association, the board is the Bar Association’s Board of Governors. See e.g., the website for the Washington State Bar Association, http://www. wsba.org/info/a bout/default.htm (“The WSBA is an administrative arm of the Washington State Supreme Court”); http://www.wsba.org /info/bog/default.htm (“The Board of Governors is the WSBA's governing body, and performs or supervises all WSBA executive functions”); and http://www.wsba.org/info/services-programs.htm. 13. Cf. Model Rule of Professional Conduct 3.5(b) (www.abanet. org/cpr/mrpc/rule_3_5.html) 14 Cf. In re Custody of R, 947 P.2d 745, 754 (Wash. App. 1997)(the “judiciary should avoid even mere suspicion of irregularity, or appearance of bias or prejudice”). 15 Cf. Lasky, supra (affirming sanction of guardian who went forward with litigation without first obtaining court approval, and ordering the imposition of additional sanctions). 16 Model Code of Judicial Conduct (www.abanet.org/cpr/mcjc/ canon_1.htlm) 17 See e.g., Guardianship of Loren Stamm, King County Cause No. 01-4-05323-7 SEA, Order 9-25- 03, p.7, f. 18 Cf. Raven Lidman and Betsy Hollingsworth, The Guardian ad Litem in Child Custody Cases: The Contours of Our Judicial System Stretched Beyond Recognition, 6 GEO. MASON L. REV., 255 (1998); and In Re Guardianship of Stamm v. Crowley, 91 P.3d 126, 129 (Wash. 2004)(describing the role of a guardian ad litem as a “neutral advisor”). 19. See e.g., Wash. Rev. Code 4.24.510, “Communication to government agency or self-regulatory organization--Immunity from civil liability;” and Wash. Rev. Code 70.128.200 “Toll-free number for complaints-- Discrimination or retaliation prohibited.” 20. See e.g. Wash. Rev. Code 70.128.090 “Inspections-- Generally” (for adult family homes). 21. Washington State’s GR 23(d)(1) requires a high school diploma or GED and five years work experience “in a discipline pertinent to the provision of guardianship services.” There is no qualifying examination. See: Application Regulations for Certified Professional Guardians, §§114- 116 (reserving rules regarding examinations), available at http://www.courts.wa.gov/programs_orgs/pos_guardian/?fa=pos _guardian.applregs. See also BARRY YEOMAN, supra (“I could be a shoe salesman at a five-and-dime store yesterday and a professional conservator or guardian today”). 25 22. Attorneys admitted to the state bar are also merely “admitted” or “licensed” to practice. Certified Professional Guardians are by contrast “certified.” 23. See: Robin Fields, Elder Care Reforms Okd, LA TIMES, January 11, 2006. (http://www .latimes.com/news/local/la?me?co nservator11jan11,0,7864701,print. story?coll=la?headlines?california); and Jack Leonard, Task Force Urges Reform of State's Guardian System: Meeting for the first time since its creation last month, the panel backs key parts of a bill under consideration by the Senate, LA TIMES, February 4, 2006 (http://www.latimes. com/news/local/la?me?conservator4feb04,0,6723944.story?coll=la ?headlines?california). 24 See: The Retirement Nightmare: Guardianship in America, a presentation for the ABA Section of Family Law, Elder Law Committee, Fall 2005, course materials presented by Robert L. Aldridge, Esq. (raldridge@hotmail.com). 25. The Department of Financial Institutions regulates trust companies, which are defined as “any corporation organized under the laws of this state engaged in trust business.” See Wash. Rev. Code 30.04.010(5). The term “trust business” includes acting as a guardian. See Wash. Rev. Code 30.04.010(4) as cross referenced to Wash. Rev. Code 30.08.150(9). Many professional guardians are corporations who act as guardians and would therefore appear to be “trust companies” for the purpose of DFI jurisdiction. 26. Agencies such as the Department of Financial Institutions are revenue neutral. See: http://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.”). Margaret Dore is an attorney in Seattle, Washington and a graduate of the University of Washington School of Law. See www.margaretdore.com. She would especially like to thank Nancy Cummings of Long Beach California for her help with this article.
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Page 7 and 8: President’s Message By Lawrence D
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Page 11 and 12: Tales of NAELA Saved by the NAELA A
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Page 35 and 36: MAY 2006 NATIONAL ELDER LAW MONTH S

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