The law imposes a general duty of care on all of us.  For example, if we drive a car in a negligent manner and cause an accident, we will be held responsible for the damage caused to the other driver and her vehicle.  Similarly, property owners have a duty of care to maintain their property so that people coming onto their property will not be injured.

The law imposes a heightened duty on Guardians who are assigned the responsibility of managing the personal or financial affairs of an Incapacitated Person.  The Certified Professional Guardians’ Standards of Practice provide a specific list of duties that are required of CPG’S.  There are also additional requirements imposed on Guardians based on statutes or case law.

If a Guardian is faced with a lawsuit claiming that they have been negligent in the performance of their duties, the party asserting the claim will be required to prove by a preponderance of the evidence, (that is, more likely than not), that the Guardian breached their duty, that the Incapacitated Person or her estate was injured, and that the injuries were due to the negligence of the Guardian.  Clearly, if a guardian performs their duties in accordance with the CPG Standards of Practice and other accepted professional guidelines, it will go a long way in protecting one from this type of claim.  But if someone makes a claim that a guardian has been negligent and follows through with a lawsuit, even if it is a false claim, the guardian will then be faced with providing evidence to rebut the allegations that their actions were negligent.  Under those circumstances, the venerable phrase “if it’s not documented, it didn’t happen” will come to the forefront.  The guardian will be well rewarded for the time taken to document their activities, the basis of their decision, the taken and why, etc.  The closer to the time of the activity that actions are documented, the better.  While technology provides us with a variety of tools for documenting our activities, ultimately, it won’t matter what system is in place if the guardian does not take the time to use it.

For those with a mathematical inclination, the equation for crime is:

“mens rea” + “actus rea” = crime, where mens rea is defined as “a guilty mind; a guilty or wrongful purpose,” (the mental component of crime), and actus rea is defined as “a guilty act,” (the physical component of crime).  The Washington state criminal code includes 4 different mental states:  Intentionally, knowingly, recklessly, and negligently.  In many instances, the severity of the crime, (1^st degree manslaughter vs 2^nd degree manslaughter), will depend on the classification of the perpetrator’s mental state – did he do the act intentionally, knowingly, recklessly, or negligently?  For example, a person can be charged with the crime of 1^st degree manslaughter when he recklessly causes the death of another person, whereas manslaughter in the 2^nd degree occurs when with criminal negligence, one causes the death of another person.  In other instances, the nature or brutality of the illegal act will determine the severity of the crime.  For example, 1^st degree assault involves crimes where one intend to inflict great bodily harm, whereas 2^nd degree assault involves substantial bodily harm.   1^st degree crimes will be punished with greater penalties, (more jail time, higher fines) than those of a lesser degree.

Obviously, an individual’s mental state and capacity play into the determination of whether the person can intentionally, knowingly, recklessly, or negligently commit a criminal act.  Accordingly, there may be times when an Incapacitated Person should not be subject to criminal prosecution, or at the very least should be entitled to a verdict of “not guilty by reason of insanity.”  The “insanity” defense applies if, at the time of the commission of the offense, as the result of a mental disease or defect, the defendant is unable to perceive the nature and quality of the act with which she is being charged, or if she is unable to tell right from wrong.  Competency to stand trial is another concept that may be important when the defendant is an Incapacitated Person.  Incompetency to stand trial depends on the defendant’s mental condition at the time of trial, (as opposed to the insanity defense, which depends on the defendant’s mental state at the time the crime was committed).  If one cannot understand the judicial proceedings and assist their attorney in their defense, then they are “incompetent to stand trial.”  Incompetency to stand trial is not a defense to a crime, but instead requires the delay of the trial.  If the defendant later regains their competency, then the trial can proceed.  It is important to note that being deemed an Incapacitated Person in the guardianship court does not result in a presumption that a person is either incompetent to stand trial or would qualify for the insanity defense.  Proof will be required in the criminal proceeding in order to establish that an individual is either not guilty by reason of insanity or incompetent to stand trial.

Major steps in a criminal case, after the prosecuting attorney’s office has filed charges, include:  arraignment; pretrial detention and/or bail; plea bargaining; trial; sentencing; and appeals.  An arraignment is a hearing before the court, where the defendant is told what crime(s) she is accused of committing.  After being informed of the charges, the defendant is allowed to enter a plea of guilty or not guilty.  The decision on whether a defendant will be detained pending trial, or released upon payment of bail, is also determined by the court.  After arraignment, detention, and bail have been settled, there will usually be plea bargaining between the prosecutor and the defense attorney or defendant.  Frequently, in exchange for a defendant’s agreement to plead guilty, the prosecutor will agree to reduce the charges or reduce the prosecutor’s sentencing recommendation.  Although generally the court will agree to the recommendations made jointly by the prosecutor and defense attorney, the court has the final say, and is not bound by an agreement reached between a defendant and the prosecutor.  In the small percentage of cases that are not resolved before trial, a trial will be conducted, and the prosecutor will be required to prove guilt beyond a reasonable doubt – less than 100% certainty but more than a high probability.  If there is doubt of a defendant’s guilt, and the doubt is based on reason, the defendant is entitled to a “not guilty” verdict.  The final step in the process, (other than an appeal) is the sentencing of the defendant if the defendant is found guilty.

There are no statistics that I am aware of that suggest that Incapacitated Persons have any greater involvement in crimes than the general public.  However, many guardians will encounter one or more situations in their career where their client has been arrested or charged with a crime.  When this occurs, there will be opportunities for the Guardian to advocate for their client.  And as unfamiliar as you as a guardian may be with the criminal justice system, many of the players in the criminal justice system will be equally unfamiliar with the concept of a guardianship or guardians.  Prosecuting attorneys, public defenders, and others may be confused regarding what role a guardian can or should play in advocating for their client.  For the guardian, this is both an opportunity and a challenge.

Finally, while the process unfolds in the criminal court system, the guardian must make sure that he or she complies with the requirements of the guardianship court.  To a certain extent, the proceedings in the criminal court and the proceedings in the guardianship court are like trains traveling on parallel tracks…they may pass in the night but they won’t come in contact with each other.  However, the guardian will want to keep the guardianship court informed of the proceedings in the criminal court, and may seek the guidance of the guardianship court to provide instructions or review a proposed course of action in the criminal proceedings.

For professional guardians, a portion of the guardian’s fee and administrative expenses, such as attorney fees, may be provided for by a reduction in participation their client is required to pay toward the cost of their care.

WAC 388-79-050(4)(c) provides:

Should the court determine after consideration of the facts and law that fees and costs in excess of the amounts allowed in WAC 388-79-030 (which are a monthly guardian fee advance of $175, administrative costs to establish a guardianship of $700, and administrative costs of $600 for every three year period) are just and reasonable and should be allowed, then the department will adjust the client’s current participation to reflect the amounts allowed upon receipt by the department of the court order setting the monthly amounts.

Italics mine.

The same chapter defines “participation” as “the amount the client pays from current monthly income toward the cost of the client’s long term care.” One may be tempted to assume that this includes a client’s received income (Social Security, Veteran’s benefits etc.) applied towards room and board. However, WAC 388-513 and 388-515 distinguish between room and board and participation.

WAC 388-515-1509(3) provides that for individuals eligible for medicaid only under Home and Community Based Services residing in assisted living (AL) facility, enhanced adult residential center (EARC), or adult family home (AFH), the Department will first allow a deduction for the client’s personal needs (PNA) of $62.79 and second, a deduction for rent and food (room and board). If a client has income after the deductions for personal needs and room and board, they may also be required to pay participation towards the cost of their care. The Department may make additional deductions from the amount of participation a client is required to pay for guardian fees and administrative costs, such as attorney fees.

Thus, for the client who’s income consists of only SSI in the amount of $674 per month, that client will first receive the deduction for PNA of $62.79 and second, the deduction for R&B in an amount up to $611.21. The allowances for personal needs and room and board equal the client’s total income ($62.79 + 611.21 = $674.00), thus there is no additional income that the client would be required to pay as participation towards the cost of their care. Because there is no participation, there is nothing to reduce to allow for guardian fees and administrative expenses.

In the situation described above, DSHS considers court approved fees and costs submitted by the guardian through an Exception to WAC 388-515-1509, with each request considered on an individual basis. While a request for an exception to rule is not always granted, requests for exceptions to rule in excess of the amounts allowed in WAC 388-79-030 are particularly rare.

While no instant solution is available, I imagine this will be a topic of lively discussion for some time and I plan to write about it more in future newsletters. If you have comments or ideas about this matter, please feel free to email me info@rm-law.com.

This tale is a real world example of what can happen when a person has a change in circumstances, but fails to account for it in their estate planning.  In December of 2008, Mr. X wished to transfer a piece of property to his nieces.  To facilitate this, one of his nieces downloaded a free quit-claim deed form off of the internet.  Mr. X then took his nieces to his bank to have the quit-claim deed form notarized.  Once the deed was finalized, one of the nieces recorded the deed with the appropriate county auditor’s office.

Sadly, Mr. X died some six months after he had executed the quit claim deed transferring the property to his nieces.  Following commencement of estate administration, the parties discovered that the property Mr. X had quit claimed to his nieces, had been left to his step-daughters in his Last Will and Testament. Mr. X’s step-daughters believed that the nieces had taken advantage of Mr. X and brought a lawsuit against the nieces and the estate.  The lawsuit dragged out for over two years and eventually concluded with a three day trial where the Judge found that the Plaintiff had not met their burden and ruled in favor of the Estate.  While the Estate enjoyed a favorable outcome in the courtroon, it nevertheless had to spend a significant amount of money (think tens of thousands of dollars) to defend itself, not to mention the legal fees of the nieces and step-daughters.

What should Mr. X have done if he had wished to transfer his property to his nieces? Or once an asset is included in a Will is it trapped there forever?  The good news first: Washington Courts have long recognized that simply because you have left an asset to a beneficiary in your Will, it does not mean that you cannot change your mind later.  Going back to the case above, what could Mr. X have done to prevent the lawsuit and transfer his property? If Mr. X had come into our office and explained his wishes, then we could have revoked his prior will, drafted a new will for him that accurately reflected his current wishes, and helped him execute a deed to transfer the property. These steps would have prevented a lawsuit from ever taking place, and probably even more importantly would have prevented a family from imploding by clarifying exactly what Mr. X wished for his property disbursement.

Clearly it is neither advisable, nor necessary to consult with an attorney regarding every financial decision that you make. Our office believes that your estate plan is like a finely tuned sports car. As the owner you should feel comfortable putting gas in it, and maybe even checking the tire pressure. However, if you want to change out the engine, or redo the gear-box it is probably a good idea to take it to a qualified mechanic. Additionally, it is a good idea to bring your estate plan in for a yearly tune up to make sure that there has not been some change major changes in either the law, or your life circumstances that would make it necessary to make some updates. Our office is ready and able to help you with all of your estate planning needs.

Since 2001, Chapter 11.118 RCW has provided for the creation and use of a Pet Trust to care for our pets when we are unable. A Pet Trust can be a stand-alone document or encompassed within a Last Will and Testament. The creator of the Trust, otherwise known as the “Grantor” or “Trustor,” funds the Trust with assets to cover a pet’s needs for its expected lifetime. In Washington, the Trust will terminate when no living animal is covered by the Trust.

The “Trustee” is the individual named as the administrator of the Trust assets to carry out the Trust terms. A Trustee may make payments to your pet’s care provider, veterinarian or for other expenses as they arise.

Considerations when drafting a Pet Trust are:

1. The name and address of the Trustee and Alternate Trustee;
2. The name and address of the pet’s caregiver and alternate caregiver, including compensation terms;
3. Detailed information about the pet or pets to be covered by the Trust or detailed information such that the pet or pets to be covered by the Trust can be easily identified. You may not always know what pets you will own at the time of your death or incapacity but providing information, such as the whereabouts of current licenses or microchip numbers, of your pets will assist in the determination of which pets will be covered and help prevent fraud.
4. Detailed instructions for the standard of living and standard of care you desire for your pets;
5. A detailed description of the property funding the Trust;
6. Possible tax issues; Trusts are typically subject to income tax;
7. Instructions for the distribution of the remaining property following termination of the Trust; and
8. Instructions for the final disposition of your pet’s remains.

A Pet Trust may not always be the best option when considering providing for your pets upon your death. Other options include a conditional bequest in your Last Will and Testament that provides money to a specific person on the condition that it is used for the care of your pet, or bequeathing ownership of your pet to a specific person along with money for their care.  As always, each individual’s circumstances are unique and it is important to speak with a knowledgeable attorney regarding your specific situation.

If your life is this ideal, then the rest of this article is not for you.

The vast majority of us experience issues within our family that will (or should) impact our estate planning.  A more real world example might go something like this:

Two of the Pennywise’s children made it through college, but Timmy Pennywise developed a nasty drug habit and has been in and out of rehab for the last ten years. Mr. and Mrs. Pennywise finally had to say, “No more money, period!”

Susie Pennywise married some deadbeat who hasn’t worked a day of their marriage—and doesn’t help out much with the kids—but seems eager to become involved in the family business, looking forward to the day when he can, “run it all himself.” Meanwhile, Susie works two jobs so she can afford to hire a babysitter. Mr. and Mrs. Pennywise eagerly wait for the day when Susie will see that Mr. Wonderful—just isn’t.

Thankfully, Tommy Pennywise has taken on more than his fair share of the family’s responsibilities. He has worked for the business since he started sweeping up the floors at age 13. As he grew older, he has been instrumental in the business’ success. He now assists his parents with bill paying, errands, and numerous trips to the doctor. Unfortunately, Ms. Pennywise’s health is on the fast decline and Mr. Pennywise is concerned about the impact of long term care on their finances.

Meanwhile, Congress has changed the minimum threshold level necessitating the filing of an estate tax return and Ms. Pennywise’s sister—whom she named along with Mr. Pennywise to make medical decisions for her if she is unable—has passed away.

Hopefully, not all of these scenarios will happen for you (except for the hardworking son/daughter), but they are the kinds of real-world situations that can impact your estate planning. The reality is life happens and certain life changes necessitate review and changes to existing estate planning documents.

Some changes that might impact your estate planning include serious health problems, death of a spouse, changes to net worth, changes to tax, property, probate or trust laws, retirement, changes in business interests, or acquisition of property out of state. Other changes you may wish to consider for estate planning purposes are or may be birth, adoption, death, marriage, divorce or serious health problems of a child or grandchild.

Of course, the list of changes mentioned above is not all inclusive. There are many life, economic and legal changes that may necessitate changes to estate planning documents. This is why our office recommends a yearly review to ensure that your wishes are implemented and are capable of being met. When our clients tell their story, our goal is for each of them to say, “I have reviewed and revised my estate plan this year and I feel comfortable that my wishes will be followed.”

What is lesser known about the substitute house bill 1053 is that it provides for follow up by the Court in the event that an account or report is not provided.

RCW 11.92.050(4) has been amended to specify what happens in the event that a guardian fails to file an account or report. The Statute indicates that the Court shall enter an order for one or more of the following actions:

(1)     Enter an order to show cause. At the show cause hearing the Court may remove the guardian and appoint a successor;

(2)     Direct the clerk to extend the Letters of Guardianship for no more than 90 days to permit the guardian to file their report;

(3)     Require the completion of any approved guardianship training made available to the guardian by the Court;

(4)     Appoint a Guardian ad Litem to do an investigation;

(5)     Provide other and further relief the Court deems just and reasonable.

RCW 36.18.016 indicates the fees that may be charged by the Court. House Bill 1053 now requires a fee for filing an accounting.

For filing accounts as required under RCW 11.92.040(2) when the net fair market value of the estate is less than $100K, a filing fee is not required. Guardianship estates with a net value between $100K and $500K must pay $75.00. Estates between $500K and $1M will be charged $150.00. Estates greater than $1M will be charged a filing fee of $250.00.

To date, I have not seen the clerk’s office impose a fee for filing an accounting but I anticipate imposition of the fees to begin in the near future.

The topic of Guardian fees and expenses is specifically addressed in the CPG Board Standards of Practice (SOP) that are effective on January 31, 2012.  The SOP that regulates fees and expenses notes the guardian’s duty to conserve the assets of the Incapacitated Person, and accordingly provides in part that “Services requiring a minimal degree of training, skill and experience should be billed accordingly.”  [SOP 410.1]

Paragraph 410.2 of the SOP outlines the requirement that fees and expenses be documented, reasonable, and for the benefit of the I.P.  Fee advances are specifically prohibited unless approved by the court.  Factors involved in determining if fees are “reasonable” include: “the necessity of the service; (b) the time required, (c) the degree of skill and experience required to perform the service, and (d) the cost of any reasonable alternative.”

Paragraph 410.3 of the SOP mandates that the Guardian: “maintain contemporaneous time and billings records for services which shall state: (a) date and time spent, (b) service performed, (c) the identity and job classification of the person performing the service, (d) expenses incurred,

and (e) subject matter of conferences, staffing, or telephone calls of significant duration.

To no surprise, the Washington Courts have also weighed in on the topic of Guardian fees, stating:

A … guardian is entitled to “such compensation for [its] services as…the

court shall deem just and reasonable.” RCW 11.92.180.  And a court may award “[a]dditional compensation…for other administrative costs, including services of an attorney.” RCW 11.92.180.  But the court may not award fees simply on the basis of work performed.  In re Guardianship of Hallaur, 44 Wn.App. 795, 800, 723 P.2d 1161 (1986).  Rather, the court must determine the need for the work done and whether it benefitted the guardianship. Hallauer, 44 Wn.App. at 800, (citing in re Estate of Larson, 103 Wn.2d 517, 523-24, 530-32, 694 P.2d 1051 (1985)).

Guardianship of McKean, 136 Wn.App. 906, 918 (2007)

There are some obvious take home lessons contained in the new SOP and caselaw, and they are clearly set out above.  However, before concluding that the above requirements are yet just one more burden, or just one more imposition on your time, I invite you to consider that the requirements could serve as motivation for a Guardian to review their procedures and technology.  Are there options/technologies available that would make it easier for you to fulfill the requirement that you maintain contemporaneous time and billings records for your services?  Do you keep your records in a format that readily identifies the identity and job classification of the person performing the service?  And do you have a system in place to collect those receipts, so that you make sure that you are reimbursed for all of the out of pocket expenses that you incur?  Perhaps your/my New Year’s Resolutions should include investigating technologies that could lessen the burden of meeting these requirements.

Within 90 days of appointment, Guardians must notify the persons identified by the Court of their Right to Request Special Notice of Proceedings and file the Notice of Standby Guardian. The Guardian’s Initial Personal Care Plan will also have to include

For the termination of a Guardianship, it is now required that the Guardian file their final verified account of administration, or Final Report, within 90 days of their termination date.

The Court may, in its discretion, schedule a notice of hearing to further review a guardian’s report.  If the Guardian fails to file their report, or does not attend the hearing, the Court shall Order the Guardian to attend a contempt hearing in which the Court, in protecting the Incapacitated Person from potential harm, may remove the Guardian, appoint a Guardian ad Litem or require the completion of Guardianship training made available by the Court.  The Court may also, for good cause shown, allow the Clerk to extend Letters of Guardianship for 90 days to allow the Guardian time to file their report.

The Annual Reports and Final Reports of Guardianships will be charged a fee when filing with the Court.  This fee is determined by the total net fair market value of the Guardianship Estate.  If this market value is less than or equal to $100,000.00, the fee will be waived.  Also, if the Court finds the payment of the fee would result in substantial hardship on the Incapacitated Person, the fee will be waived or reduced as well.  A fee of $75.00 for filing Reports with the Court will be charged if the market value of the estate is greater than $100,000.00 but does not exceed $500,000.00, and a $150.00 fee will be assessed for filing if the fair market value exceeds $500,000.00 but does not exceed one million dollars.  Finally, a $250.00 filing fee will be required to file reports for estates with a total net fair market value greater than one million dollars.

As always these changes will take some getting used to but will soon become routine, and will ultimately help both the Court and Guardians keep their cases up to date and maintained to ensure Incapacitated People are getting the full care and respect that they need and deserve.  We at Regeimbal, McDonald, P.L.L.C. are committed to helping our guardian clients abide by these laws and regulations.  Please contact us with any questions you may have or suggestions for how we may assist you with implementation of these changes.

As you walk to your car, you begin to consider the extraordinary decision you will be asked to make the following morning.  You feel a weight on your shoulders.  You recall the new CPG Standards of Practice require you to “…be familiar with the law regarding the withholding or withdrawal of life-sustaining treatment.”  (CPG SOP 408.3, effective 1-31-12)  Unfortunately, the “law regarding the withholding or withdrawal of life-sustaining treatment” is not available on a one page pamphlet from the health department.  There are, however, several points that the Guardian should keep in mind.

The decision to withhold or withdraw life-sustaining treatment involves several of the CPG Standards of Practice that will be effective on January 31, 2012.  The General Decision Standards set out in SOP 405 form the foundation for your decision making process.  SOP 405.1 states that the “primary standard for decision-making is the Substituted Judgment Standard.”  SOP 405.2 references the “best interest” standard, which is employed when a guardian cannot ascertain the “competent preferences” of the I.P.  Accordingly, your first task is to try to determine what Mr. R. would have wanted, when he was competent, if he was faced with this situation.  SOP 403.2 requires you to seek input from Mr. R, and “treat with respect the feelings, values, and opinions of the I.P.”  Family members, former co-workers, and his health care providers may all have some information regarding his previously stated preferences.  Contacting these individuals is also consistent with SOP 402.2, which requires the guardian, “where appropriate” to “consider the views and opinions of professionals, relatives, and friends who are knowledgeable about the I.P.”  This is also an appropriate time to consider SOP 401.4, which requires the guardian to “seek legal advice as necessary to know how the law applies to specific decisions.”

As you might imagine, in addition to the CPG Standards of Practice, the topic of withholding or withdrawing life sustaining treatment has been addressed by the Washington State Courts.  In a 1984 case, (In re the Guardianship of Hamlin), the Washington State Supreme Court ruled that the withholding of life sustaining treatments would not require prior court authorization when the following circumstances were present:

1. The incompetent patient’s attending physician, together with two other physicians         qualified to assess the patient’s condition, determine with reasonable medical judgment that the patient is in an advanced stage of a terminal and incurable illness and is suffering  severe and permanent mental and physical deterioration;

2. The incompetent patient’s legal guardian, if one has been appointed, determines that    either (a) the patient, if competent, would choose to refuse life sustaining treatment; or,             (b) if such a determination cannot be made, the guardian determines that the withholding  of life sustaining treatment would be in the best interests of the patient;

3. No members of the incompetent patient’s immediate family object to the decision to    withhold such treatment; and

4. Neither the patient’s physicians nor the health care facility responsible for the care of    the patient object to the decision to withhold such treatment.

The Hamlin case outlines four requirements that must be met if one is considering authorizing the withholding or withdrawal of life sustaining treatments without court approval.

However, the complexities of each of the four requirements suggest that rarely would it be advisable to forego court involvement when faced with this type of decision.  If there is any doubt, seek court approval.  It has been my experience that the Judges and Court Commissioners are helpful and compassionate in these difficult situations, and that they often provide additional guidance and suggestions that are helpful.  Furthermore, SOP 401.2 directs the guardian to “seek direction from the court as necessary.”

As outlined in the SOP’s and the Hamlin case, when the guardian is unable to determine what the treatment preferences of the I.P. were when he was competent, the guardian is then required to apply the best interest standard to make the treatment decision.  It is not unusual that the guardian may be required to use the best interest standard, as frequently despite his or her best efforts, the guardian will be unable to determine what were the treatment preferences of the I.P. when he was competent.  In a 1987 case, (In re Grant), the Washington State Supreme Court provided a non-exclusive list of factors to be considered to determine if the withholding of life-saving treatments would be in the best interest of the I.P.  The court recommended consideration of:

1)       Evidence about the patient’s present level of physical, sensory, emotional, and cognitive functioning;

2)       The degree of physical pain resulting from the medical condition, treatment, and termination of treatment, respectively;

3)       The degree of humiliation, dependence, and loss of dignity probably resulting from the condition and treatment;

4)       The life expectancy and prognosis for recovery with and without treatment;

5)       The various treatment options; and the risks, side effects, and benefits of each of those options.

As you can see, the laws regarding the withholding or withdrawal of life-sustaining treatment are complex.

And of course, every Incapacitated Person’s medical, social, and psychological circumstances are different.  When faced with a request to withhold or withdraw medical treatment, there are a number of steps in a process that the guardian must take before making the ultimate decision. When you are facing this difficult decision, don’t hesitate to make use of the resources that are available to assist you – your attorney, the courts, and experienced guardian colleagues.