Schafer Law Firm
Washington Building, Suite 1302
1019 Pacific Avenue
P.O. Box 1134
Tacoma, Washington 98401-1134
(206) 383-2167 (Fax: 572-7220)February 24, 1997
Judge Faith Ireland
King County Superior Court
516 Third Ave., Rm. C-903
Seattle, WA 98104-2381Re: Superior Court Judges Assoc. Support for S.B. 5667
--OAC Certification of Professional GuardiansDear Judge Ireland:
Enclosed is a copy of S.B. 5667 and various materials supporting the need for statewide licensing of "professional" guardians (fee-for-service guardians). The Washington Assoc. of Professional Guardians has proposed the legislation, recognizing the judiciary's and public's need for it.
The delegation of oversight responsibility for statewide guardianship certification to the Office of the Administrator of the Courts requires support from the Supreme Court. I have been told that the Supreme Court's legislative committee (Justices Durham, Talmadge, and Guy) wishes to defer to the Superior Court judges concerning this legislation, and specifically whether the OAC ought to be the responsible agency.
Retired Commissioner Epstein, who testified at a legislative hearing supporting this legislation, may have already spoken to you about this matter. Also, Commissioner Steve Gaddis was reported in the enclosed Seattle Times article on 9/25/95 as wishing for licensing and regulation of guardianship businesses. I believe it impractical (if not impossible) for each court commissioner effectively to screen each new guardianship business for relevant credentials. I understand that one "professional" guardian was essentially banished from King County due to mismanagement, but continues in the guardianship business in other counties. Mr. Epstein can inform you more about that case.
Please review these materials and urge your fellow superior court judges to support this legislation, and convey that support to Justices Durham, Talmadge, and Guy. Do not hesitate to contact me if you have any questions about the enclosed materials. Thank you.
EnclosuresVery truly yours,
Douglas A. Schafer
Schafer Law Firm
Washington Building, Suite 1302
1019 Pacific Avenue
P.O. Box 1134
Tacoma, Washington 98401-1134
(206) 383-2167 (Fax: 572-7220)TO: All Persons Considering SB 5667 (Professional Guardian Certification)
FROM: Douglas A. Schafer
DATE: February 20, 1997Office of the Administrator of the Courts is Preferred Oversight Agency
The OAC should be the agency setting standards for and certifying professional court-appointed guardians. The screening of appointees before judicial appointment is inherently a judicial function, but it is impractical for each superior court commissioner to perform adequate screening in each case. If a multi-million dollar fraud by a court-appointed guardianship business erupts, as it did in Arizona, the public will blame the judiciary for failing to screen its appointees. Case-by-case bonds are inadequate protection.
Another reason supporting delegating the oversight role to OAC staff is that it will heighten awareness within the judiciary of ageing, disability, and guardianship issues by virtue of OAC staff and advisors being available as resources and trainers to state judicial officials on guardianship matters.
Standards Proposed
When I testified before the Senate Human Services & Corrections Committee yesterday, I suggested that the standards for professional guardians should include:
1. Standards addressing financial protections, such as (a) requiring fidelity bond coverage of employees and agents who have access to wards' property, (b) errors and omissions or malpractice insurance, or adequate capital levels, (c) sound accounting procedures, and (d) audits or similar protections.
2. Standards addressing estate management, such as requiring person responsible for managing a ward's funds to have education, training, and experience in investment matters.
3. Standards addressing personal care responsibilities, such as (a) requiring persons responsible for a ward's care to have education, training, and experience in social work or similar areas, and (b) limiting case manager-to-ward ratios.
4. Standards enabling families, attorneys, and judicial officers to shop for professional guardianship services, such as (a) requiring professional guardians to disclose in advance of appointment the basis upon which they intend to charge for their services, including the rates for all individuals likely to be assigned a case, and (b) requiring professional guardians to disclose the credentials of individuals likely to be assigned a case.
* * *
Schafer Law Firm
Washington Building, Suite 1302
1019 Pacific Avenue
P.O. Box 1134
Tacoma, Washington 98401-1134
(206) 383-2167 (Fax: 572-7220)May 18, 1995
The Honorable Ralph Munro
Secretary of State
Legislative Building
P.O. Box 40220
Olympia, WA 98504-0220Re: Public Policy Issues Concerning Guardianships
Dear Mr. Munro:
I direct this personally to you, as a person interested in guardianship matters and knowledgeable about nonprofit corporations and the state legislative process. As you will see from the enclosed materials, I have undertaken something of a personal "crusade " to correct abusive guardianship practices in Pierce County. In the course of doing so, I have recognized what I regard as major problems that can only be addressed by legislative action.
The issue that I think may be of particular interest to you is whether state law should permit, as it now does, any person to operate a "professional" guardianship and trust business, without personal liability or fulfilling virtually any public-protection requirements, by merely forming a nonprofit corporation. (My concerns do not apply to "public benefit nonprofit corporations," such as Lifetime Advocacy Plus.) As I trust you are aware, the general public and, I believe, judicial officers, share a widespread misconception that any "nonprofit agency" is inherently trustworthy and monitored by some responsible authority. (I recently observed a court commissioner indicate that he failed to understand the legal difference between an incorporated guardianship agency (which was the court-appointed guardian in the case) and the individual who incorporated and directed it.)
I am not saying that all individuals operating "professional guardianship agencies" are untrustworthy, but I am confident that some serious problems inevitably will occur (if they have not already) and innocent and trusting people will be harmed if public policy makers fail to either regulate this growing industry or educate all concerned as to its risks.
Please call me so that I can discuss with you this issue, as well as (if you're interested) any of the other issues raised by the enclosed materials. Thank you.
EnclosuresVery truly yours,
Douglas A. Schafer
Schafer Law Firm
Washington Building, Suite 1302
1019 Pacific Avenue
P.O. Box 1134
Tacoma, Washington 98401-1134
(206) 383-2167 (Fax: 572-7220)June 19, 1995
Ms. Shelby Gilje
The Seattle Times
P.O. Box 70
Seattle, WA 98111Re: Need for Public Awareness (and Regulation) of Unregulated Guardianship Businesses
Dear Ms. Gilje:
I urge you to look into, from a consumer protection perspective, the unregulated world of guardianship businesses. I enclose various materials for your background, and I would be pleased to provide you more information either by phone or in person.
The problem basically is that Washington now has no effective screening or monitoring of guardianship businesses. Anybody can go into business as a paid guardian controlling the entire financial estate of elderly and disabled persons and making all their personal and health care decisions. They can enter this lucrative business as a proprietorship, with potential personal liability for misconduct, or as a "nonprofit" corporation, which likely will protect them from personal liability.
Guardian businesses are assigned actual cases by Superior Court commissioners and are formally subject to the Court's supervision, but the Superior Courts of this state lack the resources and the will to effectively screen and supervise guardianship businesses. Even modest investigation of Court files reveals the inadequacy of Court supervision, and no formal standards even exist by which Courts can screen-out unfit guardianship entrepreneurs. Guardianship businesses operated by lawyers tend to receive minimal Court scrutiny, and are the source of many, but certainly not all, of the problems. Close scrutiny by the Court of actions (and fees) by guardianship businesses normally occurs only if a family member or a friend of the ward--and some wards have no family or friends--hires a lawyer and aggressively challenges the guardianship business.
Arizona, after a well-publicized guardianship defalcation, recently enacted laws regulating guardianship businesses; Washington should do so, as well. The Attorney General's Office, Consumer Protection Division, appears to be taking an interest in the guardianship industry. Please contact me if you are interested in looking into it. I can provide you leads to several sources for more information. Thank you.
EnclosuresVery truly yours,
Douglas A. Schafer
P.S. Steve Pierce from your South Bureau may have forwarded to you some materials relating primarily to problems with judicial practices in Pierce County guardianship cases. Those materials may provide you some helpful background about guardianship cases generally, but the Pierce County issues (which are now being addressed by the local bar and bench) are distinct from the issue of state regulation of guardianship businesses.
Schafer Law Firm
Washington Building, Suite 1302
1019 Pacific Avenue
P.O. Box 1134
Tacoma, Washington 98401-1134
(206) 383-2167 (Fax: 572-7220)May 25, 1995
Barrie Althoff, Chief Disciplinary Counsel
Washington State Bar Association
500 Westin Bldg
2001 Sixth Ave.
Seattle, WA 98121-2599Re: Lawyers Operating or Affiliated with "Professional Guardian" Businesses
Dear Mr. Althoff:
This letter is to call your attention to what I believe is a significant and growing problem. Namely, an increasing number of guardianship lawyers are financially affiliated with guardianship businesses, as managing directors of their own "nonprofit" corporations or by other compensatory arrangements. That, itself, is not a problem.
The problem arises when the attorney is retained by a family member or other party to commence a guardianship for an incapacitated person. While the attorney's ethical allegiance is owed to the client who retained him or her, such an attorney's financial incentive is to secure the appointment of his or her affiliated guardianship business, and its continuation for the life of the incapacitated person. Not only does the attorney then profit from management fees or other schemes to extract profits from the nonprofit corporation, but the attorney is assured ongoing legal work as "outside counsel" representing the affiliated guardianship business.
The naive family member or other person who initially selected the attorney is often surprised when the attorney begins opposing him or her when any questions are raised or conflicts develop. Tacoma guardianship attorney, Gerald W. Neil (who with his nonprofit "Pacific Guardianship Services" had 227 active cases as of January 28, 1995, tended by eight assistants) openly states that he will withdraw from representing a petitioner if the guardian ad litem has a "problem" with the petitioner; but he wants the petitioner to tell him, "Well, you go ahead with the guardianship; I'll go get another attorney." Mr. Neil's statements were made at the Pierce County Superior Court Mandatory Guardian Ad Litem Training Program, held January 28, 1994, video tapes of which are still being used to train guardians ad litem. Mr. Neil is the 1995 Chairman of the Guardianship Committee of the Tacoma-Pierce County Bar Association. Several other Tacoma guardianship attorneys operate "nonprofit" guardianship businesses, as well, and they are the appointees of choice by the local Superior Court commissioners.
Another example of the described problem is reflected in the enclosed extract of papers filed April 3, 1995, by Doris E. Wilson in her mother's guardianship case, Guardianship of Dorothea C. Wilson (King County Superior Court Case No. 93-4-04871-5). Doris reports not knowing until too late that the "professional guardian" whom her attorney, Neil R. Sarles, had recommended and gotten appointed, was affiliated in some way with Mr. Sarles [the enclosed letterheads show them sharing the same office]. When Doris subsequently challenged the "professional guardian," Mr. Sarles opposed her because his true allegiance apparently was with his affiliated guardianship business.
I am confident that as the public becomes more aware of the many abuses that occur in guardianship practice, many more problems such as those described above will be reported. I urge you to become aware, and to make other responsible persons or committees aware, of the these problems and to address them in any professional manner that you consider appropriate. Thank you.
EnclosuresVery truly yours,
Douglas A. Schafer
cc: Ms. Doris E. Wilson
Henry Haas, Attorney
Media List
[I sent the following message to the Legislature after Pierce County Superior Court Judge Marywave Van Deren asked me to help obtain the funding needed to implement the Guardian Certification Program. She chaired the group of judicial, lawyer, and lay volunteers who formulated that Program. The Legislature responded by funding the Program for its initial year, and directing that it become self-funding thereafter.]
Subject: Plea to budget $45.5K for Guardian Oversight Board you assigned to OAC in '97.
Date: Tue, 29 Feb 2000 19:32:33 -0800
From: Doug Schafer <d_schafer@bigfoot.com>
To: [sent to all Members of the Legislature]Dear Legislators:
I have been a volunteer advocate for guardianship reforms since 1995. The 1997 legislature with nearly unanimous bipartisan support passed ESHB 1771 (clone of SSB 5667) to require "professional guardians" to meet certification requirements established by the Office of the Administrator of the Courts (OAC). Volunteer professionals and citizen advocates have worked long and hard to develop a sound certification and oversight program that the OAC is poised to fully implement -- but the OAC now needs modest funding to do so.
The Governor transmitted to the Legislature the OAC's FY2000 Supplemental Budget Request of $45,486 for the "Guardian Certification Oversight Board." The OAC's Request dated November 10, 1999, stated in its Narrative that "If this program is not funded, the legislative mandate to certify professional guardians will not be fully implemented."
The OAC was given no budget whatsoever for the Program in either the Republican or Democrat budgets proposed by the Co-Chairs of the House Appropriations Committee in the last two weeks. I confirmed today from OAC's lobbyist, Chuck Foster, that the Supreme Court and OAC do not intend to implement the guardian oversight program without the requested legislative funding. The volunteers who have worked on this project are devastated at that prospect.
Time does not now permit a full presentation of all of the very good reasons that caused the 1997 Legislature to direct the OAC to implement the professional guardian certification program. I plead with you -- do not let this important program die for lack of funding. If any of you wish, I'll find the time to share the many reasons why such a program is needed, including the horror stories from other states and ours that have resulted from the lack of effective statewide oversight of professional guardians.
For background, the OAC's budget request components are: $24,986 (Pay/benefits for 0.5 Legal Analyst I @ Range 51, step K); $5,500 (travel [reimbursement for unpaid board members, I assume]); $5,000 (Goods/Services); $10,000 (Contracts [for AGO or other counsel, as needed]). The OAC's request Narrative states, "The OAC is committed to making the program be as self-funding as possible." But this modest initial funding level appears truly necessary to get the Program fully implemented.
The following Members now on the House Appropriations or Senate Ways & Means Committees were sponsors or key committee members supporting the 1997 legislation: Reps. Cody, Keiser, & Tokuda; Sens. Roach, Zarelli, Long, & Kohl-Welles. Other 1997 sponsors and key committee members included Reps. Mitchell, Sheahan (now Sen.), Mason, Blalock, McDonald, Sterk, Costa, Conway, Butler, Murray, Constantine, Carrell, Kenney, Lambert, Lantz, Radcliff, Sherstad, & Skinner; Sens. Franklin, Hargrove, Schow & Stevens.
Please do not let the Program die for lack of funding, for the OAC's Guardian Certification Oversight Board has been recognized by the Legislature and by many others as an essential element of a safe and sound statewide guardianship system that truly serves and protects our elderly and disabled population. Information about the Program, as proposed and now provisionally implemented, is at: http://www.courts.wa.gov/programs_orgs/pos_guardian/.
Thank you for considering this plea,
Doug Schafer, Idealistic Lawyer in Tacoma.
(253) 383-2167
P.O. Box 1134, Tacoma, WA 98401