Tuesday, August 26, 2008

Court Oversight of Guardians

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 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 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.” 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.

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.” The Board does not, however, interfere with the traditional role of the superior court. The superior court continues to be the “main venue” for making a complaint against a guardian.

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.

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.

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

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.

Full Article and Source:
The Time Is Now: Guardians Should Be Licensed and Regulated Under the Executive Branch, Not the Courts

Margaret Dore, J.D., M.B.A., is a fourth generation attorney and Seattle native. She has been licensed to practice since 1986. She was one of nine nominees for the 2005 Butch Blum/Law & Politics Award of Excellence. Ms. Dore's successful cases include In re Guardianship of Stamm, 121 Wn. App. 830, 91P.3d 126 (2004), which limits the admissibility of guardian ad litem testimony. She also prevailed in the nationally recognized case, Lawrence v. Lawrence, 105 Wn. App. 683, 20 P.3d 972 (2001). For commentary on Lawrence, see Wendy N. Davis, Family Values in Flux, ABA Journal, Vol. 87, p. 26, October 2001. Law Offices of Margaret K. Dore



Anonymous said...

Margaret Dore is correct - guardians should be licensed and regulated by the executive branch, not the courts. For too long, the courts have turned guardianship into "The Great Guardianship Giveaway"! Due process is forgotten by judges with case overload; and their rubberstamping of fee requests must come to an end.

Anonymous said...

The courts are the scene of the crime! How can they give proper oversight when they are a big part of the problem?

Anonymous said...

The courts are proceeding what we would call the cozy buddy system "business as usual". They have the final word; all power and control of the courts over us, us, the "little" people.

And, that's exacly where they want us and how they want the probate process to proceed.