To the Editor:
John Ruhl's article in the March 2007 King County Bar Bulletin ("Bills Back Judicial Appointments To End Special Interest Wave") describes the KCBA's decision to support HB 2150 and HJR 4223, implementing a judicial selection process involving candidate screening by a judicial nominating commission.
These measures are a serious mistake. Our present system of judicial selection is far superior. First, some believe that judicial selection entrusted to an alleged "impartial" panel would somehow eliminate politics from judicial selection. Such a belief is entirely naive. In fact, the federal process of judicial appointment of judges is, if anything, more nasty and difficult than any kind of election process. The politics of judicial selection merely moves from the public electoral process to behind closed doors. Also, no governor would readily relinquish his or her power to appoint judges to a group not completely within that governor's ability to control. A governor would control the nominating commission.
Another reason given in favor of a different judicial selection process is that contributions to judicial campaigns would be avoided. That objective is not achieved by the legislation supported by KCBA. Judicial retention elections, too, cost money. Moreover, they can be intensely nasty as well. Just ask Rose Bird. From my experience in elections, I simply do not trust an election process like the so-called Missouri system where a candidate, in effect, runs against himself or herself for retention.
Finally, the judicial nominating commission smacks too readily of an "inside baseball" kind of selection process for judges. The tendency will be for safe candidates to be selected by the commission. In years past, this would have meant that candidates with different judicial philosophies, minorities, and women might never have seen the bench. The electoral process, at least, affords a great deal of diversity in the candidates who seek judicial positions.
In sum, we have a judicial selection process that has served us well. The men and women of the judiciary in Washington have largely been good people. Our bench has been blessed with no hints of corruption and/or misconduct.
This is not to say that we cannot improve the selection/election process now in place. I favor public financing of appellate court campaigns. I also encourage greater public knowledge of the candidates for the judiciary, which can be accomplished by more aggressive use of public television like TVW, and public information efforts like our Supreme Court has used in publicizing candidates for the bench. I commend the KCBA on its excellent work on the VotingforJudges.org Web site.
The citizens of Washington will not readily give up their ability to elect judges in favor of the KCBA-sponsored proposals. The failed efforts recounted in John Ruhl's article in 1934, 1969 and 1995 clearly indicate our populist tradition of electing judges is deeply engrained in our politics. I will join many others in vigorously campaigning against such proposals, if they ever see the light of day in the Legislature.
-Philip A. Talmadge
To the Editor:
Kudos to Margaret Dore for her article regarding the dark side of guardianships. ("A Call for Executive Oversight of Guardians," Bar Bulletin, March 2007.) As a probate practitioner, I have observed instances of financial abuse (endless billing, over-staffing and incompetence) by certain guardians and their attorneys. The system lacks meaningful oversight. Recourse to the court is often impractical, unproductive or counter-productive. The most vulnerable among us and their families (if they have families) pay the bill.
Ms. Dore hit the nail on the head regarding the problem. I am not, however, sure about the solution. I agree that there should be more discussion. Meanwhile, I can only selfishly hope and pray that no family member or friend of mine will ever be the subject of guardianship proceedings under the current system.
-Theresa Schrempp
Sonkin & Schrempp, PLLC
Bellevue
To the Editor:
Margaret Dore's article urging a regulatory paradigm shift for "professional" guardians ("A Call for Executive Oversight of Guardians," Bar Bulletin, March 2007) is endorsed by my family and me. Our keen appreciation for Ms. Dore's call for change began when my mother-in-law was served with a petition for guardianship in 2000. This journey became exceedingly more stressful and difficult than any multimillion-dollar real estate development project my real estate firm has ever undertaken and far tougher than my duty in Vietnam as an Airborne Ranger infantry platoon leader.
Our encounter with the guardianship industry, primarily involving a non-profit guardianship company and its attorneys, is in marked contrast with other industries, including the real estate industry with which I am most familiar. The Department of Licensing (DOL) regulates real estate brokers and conducts periodic unannounced audits. Anyone with a grievance against a licensee can file a complaint with DOL, an arm's-length regulator, without costs or legal counsel. Consequences can include license suspension, revocation and/or criminal charges. This contrasts with guardian oversight where complainants must go to court against the guardian and its legal counsel. Pursuits of abuses are dependent on family members and/or wards, often lacking emotional and/or financial resources, to persevere through the court system to obtain equitable judicial remedies.
The State's current guardianship structure/practices assure success for the guardians and their attorneys, while abuses suffered by wards and their families (the customers/clients) at the hands of "Certified Professional Guardians" (CPG) continue. Industry education for the lofty "CPG" title requires only a two-day class. Beauticians, insurance agents, real estate sales people, etc., have exceedingly more difficult licensing requirements, yet never achieve the "Certified Professional" designation. It's surprising that those who have obtained the true stature of a legal, accounting, engineering, architectural, medical and/or dental professional, continue to allow the guardianship industry with far lesser entry requirements to call themselves "Professional" and/or "Certified Professional" and have not called for change sooner.
The specifics of our family's experiences with the guardianship industry lend credence to the merits of Ms. Dore's recommendations. The guardianship company we encountered was anything but professional; its conduct resulted in its removal for cause by the trial court that originally confirmed its appointment. The removed guardian had agreed, as a condition of a prior disciplinary settlement action with the Certified Professional Guardian Board, to disclose any instances of its removal in future Declarations of Proposed Guardian.
Court files show in multiple subsequent future Declarations, even when signed under the penalty of perjury, that the guardian failed to disclose its removal in my mother-in-law's case. Rather than encountering adverse consequences for its violations, the company generated more business from future cases resulting in potentially more victims. We were shocked to learn from a bank nearly two years after the guardian was removed and simultaneously ordered to turn over all assets to the successor guardian company, that the removed guardian was continuing to receive and apparently discarding bank statements in the name of its former ward.
This blatant disregard for a court order should have resulted in consequences to the guardian by the courts and Certified Professional Guardian Board. Rather, to this day this guardianship company continues, despite being specifically cited along with one of its attorneys in the Seattle Times series earlier this year, to obtain new cases while defying directives from its industry peers and a Superior Court judge's order. Absent major regulatory changes, how many more families will this disreputable guardian, under the guise of being a "non-profit" Certified Profes-sional Guardian, be allowed to abuse?
Thank you Ms. Dore, may your peers support your efforts to improve a broken system typically outside the public's awareness until it's too late.
-Larry Ingraham
Lynnwood
To the Editor:
A case has been made for taking the monitoring of the guardianship program out of the courts. ("A Call for Executive Oversight of Guardians," Bar Bulletin, March 2007.) One need look no further than the consequences of courtroom "monitoring" to see that this is a critical program modification:
- The courts don't monitor: Whether due to time constraints, bias or corruption, commissioners and judges in probate courts across America have done little more than apply a gigantic rubberstamp to the submissions of the guardians.
- This blanket approval has created a subculture of predatory guardians who are exploiting the very people they are required to protect. Some guardians fail to make even a minimal effort to disguise their theft. Examine the brazenly dishonest accounting of a guardianship and its attorney at www.guardianshipscam.com. This crude theft of a sick elderly woman was repeatedly approved by a court required to "monitor."
- The lack of oversight has put our most vulnerable citizens at risk and made them nothing more than "bounty" to avaricious guardians. Countless media expos?s have revealed decisions being made on the basis of guardianship greed and not client need. A national site, www.stopguardianabuse.org, is replete with horrific tales of guardian abuse. Since the guardians can litigate for eternity on the client's dime, the families are often left bankrupt because they are required to foot their own bills.
- All of the above has resulted in a profound lack of respect for the "judicial system." Too often in the probate courts of America, "government by law" has morphed into "government by judicial whim, bias or peeve."
- The author claims that the courts are doing "the best they can" with the huge numbers of cases dumped on them daily. I disagree. You'll never find surgeons doing "open and close" to get through 20 operations a day. You would expect them to have the integrity to do what was required to achieve the goals of the procedure for each patient. That is because we value life. To believe that the rubberstamp is the best our courts can do is to fail to value justice.
It is past time for the legal profession to step up to the plate. Its members need to suggest mediation to squabbling families, not guardianships. They need to refuse to tolerate those who exploit the vulnerable and those who assist in the exploitation. The state bar associations need to develop a specific set of standards to discipline guardianship attorneys who exploit the helpless. Commissions on judicial conduct need to hunt for and weed out those members who feel expediency trumps the need for justice. Our legislators must find alternative monitoring.
Guardianships are shaping up to be the organized crime of the 21st century, increasingly referred to as the "Barfia," by those in the know. The courtroom should not be the scene of the crime. The courts need to get back to their original purpose, applying the law to find justice. Monitoring needs to be in the hands of those with the time, the skills and the desire to do it appropriately. Only then can the guardianship program be what it was intended to be - a protection for our loved ones who are no longer able to protect themselves, offered by a society that recognizes its responsibility and its debt to these citizens.
-Sharon Denney, Vice President
National Association to Stop Guardian Abuse
Seattle
To the Editor:
I am a self-employed business person whose family came into contact with one of Washington's Certified Professional Guardians. Please accept this letter from the perspective of the consumer.
The guardianship company in question was appointed personal representative of my uncle's estate. There were repeated problems for which we called to complain. The company's response was to blame us.
Perhaps most notably, I never saw any reasonable list of values and assets, as might be made by my business clients. Even the "Final Report" listed assets at $1.00 holding values, as opposed to their actual values.
I was also never sure as to the total fees charged. I tried to raise these issues with the court, but was shut down. The guardian's attorney, by contrast, was allowed to speak as she wished. It was a horrible, dehumanizing experience. I still don't know how much the estate was actually worth or whether my mother, who was the actual heir, received what was she was due.
I hope that the situation can be improved so as to prevent other families from having the same or similar experience. Perhaps Ms. Dore's suggestions ("A Call for Executive Oversight of Guardians," Bar Bulletin, March 2007) are a start.
-Doug Holt
Beaverton, OR
To the Editor:
I am responding to Ms. Dore's analysis of professional guardianship regulation in Washington as presented in the March issue of the Bar Bulletin ("A Call for Executive Oversight of Guardians").
Ms. Dore supports her position for professional guardian licensure by citing articles "- in the popular press" that allegedly reflect the misdeeds of professional guardians. While these articles are interesting and raise the readers' ire, they should not be assumed to reflect the practices of the majority of the approximately 250 certified professional guardians available to assist vulnerable adults in Washington. These articles sensationalize isolated incidents with the intention of selling newspapers. The articles appearing in the newspapers do not and cannot offer the in-depth analysis necessary to truly understand the dynamic elements underlying the problems in question. They simply place blame.
Ms. Dore's article goes on to state that guardianship abuse has caught the attention of the court, which subsequently led to the formulation of the Certified Professional Guardian Program. While I am certain that the courts supported certification, the impetus for certification was provided by the now defunct Washington Association of Professional Guardians. Sadly and ironically, that group's intention of adding respectability to its ranks resulted in the rise of a few of its politically astute members to Certification Board stature and the ultimate demise of the organization whose credibility was supposed to be bolstered by the certification effort. While I agree that certification has been misplaced with the Certification Board as currently managed by the Administrator for the Courts, I do not believe that a simple transfer of licensure to another state agency would do much if anything to solve the problem of proper administration of guardianship services to the vulnerable residents of Washington.
The development of a structure that protects the vulnerable citizens of our state should include input from the legal community, not emanate from it or be completely controlled by it. Otherwise, I am afraid that the legal community's misplaced efforts to "protect" will only continue to add to the already over-abundant litigation in guardianship cases, the systemic exploitation of a vulnerable elderly population and the further alienation of qualified persons who are truly capable of serving the needs of the vulnerable citizens of our state.
-George Marcoe
Certified Professional Guardian
Lake Stevens
