Attorneys who represent certified professional guardians (CPGs) under the auspices of the state’s Certified Professional Guardianship Board will need to bone up on new audit rules adopted by the Board and prepare their CPG clients. Attorneys not only need to make sure that their CPG clients prepare timely reports, but that the attorneys file the prepared reports and obtain court orders in a timely fashion.
Audit Process
The new audit process was adopted by the Board in November. The process is similar to that of the Washington State Bar Association’s random audit of trust accounts, with the difference that all CPGs will be audited. Disciplinary Regulation (DR) 520 provides:
To periodically audit guardians’ compliance with standards of practice and statutory court filing requirements, the Board directs AOC to select certified professional guardians at least monthly and review the guardians’ cases on SCOMIS or other available case information sources. AOC may open a grievance and conduct an investigation pursuant to these Disciplinary Regulations.
The Board received a significant number of comments on this regulation — more than the Board has ever received on any proposed amendment to a regulation. The Board considered comments from the Superior Court Judges Association Probate and Guardianship Committee supportive of this process.
One of the major concerns was whether the Board should actively audit guardians when the Superior Court is charged with oversight of guardianships. There was discussion about how not all superior courts have the funds or staff to actively monitor guardianships. Approximately half of Washington counties have some kind of delinquency review and this regulation will complement the existing programs.
The Board is currently developing an implementation process for DR 520 and anticipates that the audits will begin by June. The general plan is to audit certified professional guardians’ cases for timeliness of filing required reports, such as the inventory, personal care plan and annual accountings.
The audit will look at the prior six months for compliance with timely filing. The guardians will be selected monthly at random from both western and eastern Washington. Each guardian will be audited over the course of the next two years.
The information on audits will be shared with the relevant Superior Court if a guardian is not compliant with filing all reports. Guardians may be audited a second time if there are concerns with the original audit. The Board plans to adopt an implementation process at its May meeting.
It is hoped that the audits will provide the following data:
- The percentage of CPGs who file timely reports; with this information the Board can determine whether further education is needed in this area;
- Whether there is any correlation between late filings and a guardian who is having systemic problems, including those that could have a more severe impact on the incapacitated person; and
- The effectiveness of each county’s monitoring program and the potential need for more education in this area.
The Board’s direction is consistent with the regulation of guardians at the national level. Other states such as Arizona and California are auditing their guardians. The Board knows that timeliness of reports is only one aspect of guardianship case management and the Board plans to continue working with the courts, professional guardians and community advocates on other monitoring programs.
Grievance Procedure
The Board is charged with the obligation to regulate the practice CPGs without interfering with the traditional role of the courts in overseeing individual guardianships and guardians under RCW chapters 11.88 and 11.92. The Board’s procedures are not intended to “duplicate the statutory process by which the courts supervise guardians nor are they a mechanism to appeal a court decision regarding the appointment or conduct of a guardian.” GR 23(a).
A complaint to the Board regarding a CPG’s conduct in individual cases under court supervision ordinarily will be referred for review and action to the presiding judge of the Superior Court handling the matter. The Board will receive the court’s response and determine if any disciplinary action is warranted.
This regulatory process means that professional guardians are not only subject to court direction pursuant to statute and court rule, but also are required to follow the Standards of Practice and are subject to discipline by the Board if there is a violation.1 While a court ordinarily will look at a professional guardian’s conduct on a case-by-case basis, the Board does and also can look at a CPG’s conduct over a number of cases in what can be multiple counties to ensure that incapacitated persons are protected.
Anyone may file a written grievance. The grounds for discipline of a guardian include the violation of any duty imposed by statute, court order, law, rule or regulation. The grievance form is located at the Board’s website: http://www.courts.wa.gov/programs%5Forgs/guardian/.
The guardian investigator for the Administrative Office of the Courts will investigate the grievance and report to the Board, which is responsible for taking action on the grievance in accordance with its disciplinary regulations. The Board has a variety of disciplinary sanctions that can be tailored to the specific facts of the case, including letters of admonishment or reprimand, monitoring, probation and decertification. A full description of the grievance process is on the Board’s website.
Becoming a Guardian
Like the military, being a certified professional guardian can be the toughest job you’ll ever love. The variety and challenge of solving problems quickly, and helping people who are not able to help themselves are some of the more satisfying aspects of the job. Good CPGs are known for being able to mediate disputes among family members, for their patience in working with mentally impaired individuals, and having a broad set of skills, including financial management and health care decision making.
A CPG must have at least an AA degree and meet certain experience requirements. An applicant with at least a four-year college degree also must have at least two years of experience pertinent to the provision of guardianship services in the legal, financial, social services or health care areas. Not just any experience counts — you must have exercised independent judgment or decision making on behalf of others in one of the above areas.
Applicants also must complete the University of Washington Educational Outreach Guardianship Certificate Program, which includes instruction by professional guardians, lawyers, ethicists and health care professionals. The course is a 90-hour combination of 56 hours of in-class time and 34 hours of interactive online instruction. The class lasts approximately six months.
The next available class will be held in Eastern Washington starting in September. For more information, go to the UW Extension Office website at: http://www.outreach.washington.edu/seg/legal.asp. For more information on the application process, visit: http://www.courts.wa.gov/committee/?fa=committee.home&committee_id=114.
About the authors: King County Superior Court Judge Kimberley Prochnau is chair of the Certified Professional Guardian Board. Attorneys Robin Balsam and Chris Neil are practicing professional guardians and members of the Board.
1 These standards of practice were adopted by the Board, pursuant to Supreme Court rule, and can be found at the Washington State Courts website.
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