Monday, July 14, 2014

Disciplinary Review Boards for Professional Guardians: A Question of Process?

Professional guardians have become important players in the world of adult and elder care. As the need has grown, so have efforts to establish standards or oversight mechanisms.  The Center for Guardianship Certification (CGC), for example, offers a national certification process that requires applicants to pass a test, meet minimum eligibility requirements, pay a fee, and make attestations about their background. As reported recently by Sally Hurme for the ABA's Commission on Law and Aging, "as of April 2013, CGC had approved over 1,600 National Certified Guardians and 65 National Master Guardians throughout the country."

Some states have required professional guardians (as opposed to family member or similar one-time guardians) to obtain CGC certification or have adopted state-specific certification standards.  In some states, such as Texas and Washington, certification combines with a state entity to receive and evaluate complaints about professional guardians, combined with a disciplinary process. Such disciplinary boards are usually treated as a supplemental option, rather than as a substitution for court reviews, where parties seek review of a guardian's performance.

Having the power to affect the career of a guardian, disciplinary boards for professional guardians have generated questions about procedural fairness.  In a recent decision by the Washington Supreme Court, the court was called upon to review the procedural fairness of  anctions imposed by the Washington's Certified Professional Guardian Board.  At the heart of the challenge was the defendant's allegations of bias against her by an influential member of the Board, someone with whom she had previously served on the Board, and further asserting that the hearing officer had a financial interest in the outcome of the disciplinary proceedings, because of desire to continue his paid role for the Board.

The allegations against the defendant, who had more than 10 years of experience as a certified guardian and who maintained an active caseload of more than 60 guardianships, focused on her role as guardian for an elderly woman and for a disabled younger adult.  She was alleged to have failed to assist in timely purchase of new glasses for the elderly woman with dementia, and to consult regarding movement of the younger adult to a hospice facility.  The defendant contended that all actions taken by her were appropriate and consistent with the discretion accorded her under a "substitute judgment" standard.

In its July 3, 2014 decision in The Matter of Disciplinary Proceedings against Lori A. Petersen, the Washington Supreme Court, sitting en banc, rejected the defendant's arguments about a "personal vendetta" against her, upheld the findings and conclusions regarding defendant's alleged violation of state guardianship standards in serving the two wards, and rejected the defendant's arguments about procedural unfairness. 

Nonetheless, the Washington Supreme Court ruled that "[b]ecause this is a case of first impression and the Board aspires to consistency with disciplinary sanctions, we remand to the Board to consider whether the sanctions sought against [the defendant], including the monetary fees, are consistent with those imposed in other cases." The Court questioned the imposition of a one year suspension from practice and more than $30,000 in costs and fees, stating its belief that the "circumstances of this case and the severity of the sanctions and fees in light of the charges brought by Petersen warrant an explicit proportionality inquiry."

In 2010, a Seattle Times news article raised questions about the oversight role of the Washington board, reporting that in "five years, the board has taken action against seven guardians or guardian companies. One lost certification. The others negotiated deals in which they promised not to break the rules. Some agreed to additional monitoring."

In the Petersen case, the Washington Academy of Elder Law Attorneys  (through Rajiv Nagaich, Esq.) submitted an amicus brief, challenging the procedural fairness of proceedings against professional guardians in Washington.

For additional thoughts about oversight of guardians, see "A Call for Standards: An Overview of the Current Status and Need for Guardian Standards of Conduct and Codes of Ethics," by University of Washington Law Professor Karen Boxx and Texas attorney and former executive director for the National Guardianship Association, Terry W. Hammond.

http://lawprofessors.typepad.com/elder_law/2014/07/disciplinary-review-boards-for-professional-guardians-a-question-of-process-.html

Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink

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