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 14, 1996
HAND DELIVERED
Kelso Gillenwater, Publisher
David A. Zeeck, Executive Editor
The News Tribune
Tacoma, WashingtonRe: Poor Journalistic Coverage of SSB 6257 and the Problems It Addresses Involving
Child Custody, Juvenile Dependency, and Elderly/Disabled Guardianship CasesGentlemen:
In a sidebar to John Gillie's May 28, 1995, article about a probe of the "Guardianship System," your paper invited reader feedback about personal experiences with the "system." John told me shortly thereafter that he was deluged with 60 or so calls and letters, as I recall. (The often promised follow-up story never happened.)
I also receive numerous calls and letters from the public whenever my name appears in print as a critic of the guardianship system. The lay public, however, cannot distinguish guardianship cases (under RCW Title 11) from two other types of cases in which investigators (who usually are lawyers) are called "guardians ad litem"--child custody/marital dissolution cases(under RCW Title 26), and juvenile dependency cases (under RCW Title 13). I refer to those two types of cases as "family court" cases. I estimate that two thirds of the "victim" calls and letters I get involve problems with guardians ad litem in family court cases. John Gillie indicated to me that his reader feedback was similar. In Pierce County, several of the same overbearing lawyers routinely serve as guardians ad litem in both guardianship and family court cases.
After learning early last spring that some victims of guardian ad litem abuses in family court cases were organizing, I thereafter referred family court victims to that group--Alliance for the Rights of Children ("ARCH" brochure enclosed). I also attempted to solicit other legal professionals to address the apparent problems (my memo re: CASA dated 6/9/95 enclosed).
The ARCH group successfully got the attention of Sen. Mark Gaspard, who met with them last fall, and Rep. Steve Conway, who met with them in December. I also attended those meetings, to lend moral support to that group and to describe the problems in the guardianship system.
The legislators, including Sen. Rosa Franklin, directed a legislative staff attorney (Richard Roger) to draft SB 6257 to address their constituents' problems with guardians ad litem in family court and guardianship cases. It was introduced in the Senate before I responded to Roger's request for comment.
Upon learning, about 1/9/96, that SB 6257 had some hope of passage, I drafted proposed amendments to address many other problems with guardianship cases (RCW Title 11). Many victims from Pierce County testified on 1/17/96 in support of the bill, as did I and a SU Law School professor. At the very strong urging of Human Services and Corrections Comm. chair Sen. Jim Hargrove, the organized state bar (Wash. St. Bar Assoc., Real Property, Probate, and Trust Section, hereafter "RPPT") considered my proposals, agreed to immediately support some, and wished to study others. The RPPT-approved amendments to Title 11 were incorporated into SSB 6257 as approved by Sen. Hargrove's committee on 2/2/96, and as approved by the full Senate on 2/13/96.
This legislative effort is truly "grass roots," involving no paid lobbyists (but formal endorsement of AARP and possible support by the ACLU). The support is has received from RPPT has been almost begrudging support. Many opponents of the bill claim that it is being forced upon the whole state only because of problems in Pierce County, but I can document horror stories in King County and Spokane County (and I'm sure there are more elsewhere).
The bill might today be assigned to the House Law and Justice Committee chaired by Rep. Larry Sheahan (who killed companion bill HB 2881), who may kill the bill unless there is overwhelming public support. To get overwhelming public support, WE NEED SOME MEDIA ATTENTION! The 3-sentence tidbit on page B12 of today's TNT, which mis-identifies the bill number and poorly summarizes the bill, is inadequate. To my knowledge, neither the TNT or any other media organization has given any significant coverage of this legislation.
Please provide appropriate coverage of this bill, which will affect everyone who grows old or who cares about others who do, and will affect every divorcing parent with minor children. I can provide you all the help in assembling information or noting specific "horror stories" that you may desire. 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)February 20, 1996
Law & Justice Committee Members
House of Representatives
Washington 1996 LegislatureRe: Engrossed Substitute Senate Bill 6257
Ladies and Gentlemen:
I have been publicly crusading for over a year to correct serious problems in the guardianship system. My local notoriety has caused lawyers and non-lawyers to bring to my attention serious problems with guardians ad litem in cases involving children, also.
ESSB 6257 (the "Bill") should be enacted now because it makes several simple, but very important, changes that protect and preserve fundamental rights of children, parents, and elderly or disabled persons. All debatable provisions from its several earlier versions (and companion bill HB 2881) have been stricken for "further study," leaving only those reforms to which no reasonable person could object, as explained below. The "§" references below are to sections of the Bill.
Training and Selection of GALs Who Investigate Children and Parents. The Bill will protect children and parents involved in juvenile dependency (RCW Title 13) and child custody (RCW Title 26) cases by helping to ensure that court-appointed investigators (guardians ad litem, or "GALs"), whose reports carry substantial weight in the placement or custody of children, are adequately trained [§§2-4, §17(1), §18(1)], that GALs are selected without judicial or interested party favoritism [§17(2)(a), §18(2)(a)], that parents are given the GAL's background qualifications [§13(3)(e), §15(3)(e)], and that parents are permitted to object to the appointment of a GAL they consider unfit [§13(8), §15(4), §17(2)(b)&(c), §18(2)(b)&(c)]. The Bill directs a study on implementing court appointed special advocate ("CASA") programs, which use trained and dedicated volunteer GALs, statewide for both dependency and child custody cases. [§3(1)] CASA has been highly successful in King County child custody cases for over 12 years and serves elsewhere only in dependency cases.
Recognition of Less Restrictive Alternatives to Guardianship. The Bill clarifies our guardianship law (RCW Ch. 11.88) by recognizing the fundamental right of elderly and disabled persons to have their less restrictive alternatives to guardianship (e.g., durable powers of attorney for financial and/or medical decisions, living trusts) left in place unless the court finds them clearly not in the person's best interests. [§8(1)(i), §10(4)(e)&(4)(f)(iv)&(8)] A guardianship always involves a court-ordered revocation of some of the ward's civil rights, invasion of the ward's financial and personal privacy, and great cost that normally is charged to the ward. Studies have shown that the loss of all control over their lives (the normal result of a guardianship) accelerates the decline and death of elderly persons. I cannot imagine any person desiring to have a court-supervised guardianship. All competent estate planning professionals counsel their clients to avoid guardianship by signing durable powers of attorney or living trusts, or both.
When people sign a durable power of attorney, they make a deliberate judgment as to whom, normally among their family and friends, they choose as their agent to make their financial and personal decisions if they become incapacitated. They also decide what authority to delegate, and what accountability to require. Such stand-by arrangements involve no deprivation of civil rights, no invasion of privacy, and no significant cost; and they often work very effectively after a person's later incapacity. Under present actual judicial practices, however, anybody can "trump" the person's carefully-made plans after they become incapacitated by filing a guardianship petition in court, which almost always results in replacement of the power of attorney with a court-supervised guardian (often not the person's chosen agent) for the person's remaining lifetime. Our laws must allow each of us to avoid unwelcome and unnecessary intrusion and intervention into our personal and financial affairs by the judicial branch of our government and the guardianship lawyers and businesses it supports.
Recognition of AIP's Due Process Right to Testify at Guardianship Hearing. Since the due process rights of alleged incapacitated persons ("AIPs") to testify and present evidence at their own guardianship hearings have been routinely denied by the Pierce County Superior Court, and possibly by other county superior courts, the Bill expressly recognizes that right. [§8(4)(last sentence of notice), §9(3)]
Recognition of AIP's Due Process Right to Choose Own Lawyer. Since the client of a King County lawyer recently was denied his due process right to be represented by his chosen lawyer in a Pierce County Superior Court guardianship case, and since such "out-of-towner" judicial biases and favoritisms likely deny citizens that due process right in many counties, the Bill expressly recognizes that right. [§9(1)]
Recognition of AIP's Right to Have Own Doctor Prepare Medical Report. Existing law requires that in each guardianship case a medical report about the AIP's condition be prepared for the court by a physician or psychologist. Some GALs routinely avoid requesting the medical report from the AIP's regular physician and instead routinely hire a favorite psychologist to visit the AIP and prepare the requisite report. The Bill recognizes the privacy right of the AIP to choose the health care professional who will examine him or her and prepare the medical report, unless the court orders otherwise for, presumably, good reasons. [§9(4)]
Training and Selection of GALs in Guardianship Cases. The Bill has provisions to protect the rights of the elderly and disabled in guardianship cases by helping to ensure that GALs are adequately trained [§3(2), §10(3)(d)&(e)], that GALs are selected without judicial or interested party favoritism [§10(3)(a)], that parties are given the GAL's background qualifications and permitted to object to the appointment of a GAL they consider unfit [§10(2)], and that courts police the performance of GALs and remove clearly unfit ones from their GAL registries [§10(3)(a)].
GAL Investigators Should Not Wear Black Robes. The Bill attempts to address the problem that arises from lawyers regularly serving as court-appointed GALs while they also occasionally substitute as black-robed judicial officers. The occasional judicial service gives the appearance of unwarranted authority to the lawyer's GAL reports, and chills the zealousness of counsel for parties disfavored by the GAL since such counsel, on any day in another case, may find herself standing before the black-robed GAL-lawyer. To effectively address this problem, §12 of the Bill should be amended to read "no attorney may serve as a part time or pro tempore superior court judge or commissioner . . . ." I believe the Senate sponsors of the Bill support this correction.
Amendment Being Presented by Attorney General's Staff. I support the amendment to the Bill being proposed by the Attorney General's staff, inserting a new lead sentence at §10(8) to permit any person to move for temporary relief under RCW Ch. 7.40 (temporary restraining orders, injunctions, etc.) to address any emergency needs of the AIP. Proceedings under that chapter are conducted with some recognition of due process and rules of evidence, so I am confident that an AIP's chosen agent would not be removed by unfounded accusations in such proceedings. A similar permissive cross-reference to that chapter appears at RCW 74.34.120 in the Abuse of Vulnerable Adults Act ("AVAA").
I submit that the AVAA is the proper tool to address concerns about abuse and exploitation of AIPs. But, for reasons that must have been oversight, the legislature in 1995 found "that a significant number of … vulnerable adults … [are] incapable of asking for help and protection," [RCW 74.34.010] but left DSHS as permitted to help, by getting a protective order, only those abused and exploited victims who are capable of giving voluntary, fully informed consent to the offer of help. [RCW 74.34.150] The legislature should amend RCW 74.34.150 by appending to its first sentence: "PROVIDED, consent is not required of a vulnerable adult who reasonably appears incapable of giving consent."
Sections 5-7, 11, 14, and 16 of the Bill are merely technical "clean-up" or conforming provisions.
Conclusion. ESSB 6257 implements simple concepts that everyone can understand and everyone can support. It should be enacted now, because good people every judicial day are being irreparably harmed by those failures in our current system that this Bill addresses. This important legislation affects everyone who grows old or otherwise becomes disabled, and all children and parents involved in divorces or dependency cases.
I also support extensive study during the legislative interim of our state's laws and judicial practices concerning guardianship and its alternatives, with a view to considering extensive reforms in the 1997 legislative session. I am separately providing to your committee staff some suggested reforms that I have proposed.
Thank you for giving the Bill your attention.
cc: Sen. Rosa Franklin, Prime SponsorVery truly yours,
Douglas A. Schafer
Sen. Jim Hargrove, Chair, Sen. Hum. Serv. & Corr. Comm.
Schafer Law Firm
Washington Building, Suite 1302
1019 Pacific Avenue
P.O. Box 1134
Tacoma, Washington 98401-1134
(206) 383-2167 (Fax: 572-7220)March 7, 1996
Governor Mike Lowry
State of Washington
Legislative Building
P.O. Box 41001
Olympia, WA 98504-1001Re: Supporting ESSB 6257 -- Guardians ad Litem & Guardianship Procedures
Involving Children and Elderly or Disabled PersonsDear Governor Lowry:
I strongly urge you to sign into law ESSB 6257, which was approved by both the House of Representatives and the Senate today. I have been personally crusading, for over a year to all who would listen, for reforms of what I call the "guardianship industry." ESSB 6257 takes a major step in that direction by recognizing that citizens ought to be permitted, through careful planning with durable powers of attorney and/or living trusts, to avoid the nightmare of their guardianship. The Bill makes several other very important changes or clarifications in the laws relating to guardianship proceedings and to judicial proceedings involving children.
Enclosed is a copy of my summary explaining and supporting the Bill in the form presented to, and substantially approved by, the House Law & Justice Committee. While there were some changes made by that committee and by the Conference Committee, none seriously impaired the major reforms that I consider central to the Bill.
There was considerable debate about whether certain provisions concerning guardians ad litem ("GALs") in child custody and juvenile dependency cases should apply to both voluntary and paid GALs, or just paid ones. I am satisfied with the Conference Committee's compromises.
There was some debate about Section 12, which forbids attorneys who are serving as paid GALs in cases from concurrently donning black robes, on occasional days, as substitute Superior Court commissioners and deciding the same types of cases. In Pierce County this is a particular problem, since some lawyers appear to subsist almost solely on court-appointed GAL and Commissioner pro tem work. (One of whom, who averages about 20 days a year as a pro tem court commission, reportedly claims to have all the judges "in his back pocket.") While the Conference Committee's compromise of exempting all of Eastern Washington from that ban is questionable public policy, in my view; it apparently "bought" support from the two Eastern Washington lawyers on the Conference Committee. (I consider curing the problem in only half the state better than curing it nowhere.) If you have any questions about the need for this ban, please give me the opportunity to convince you or your staff.
Concerning the policy of recognizing alternatives to guardianship, I am enclosing a copy of a booklet by the American Bar Association's Commission on Legal Problems of the Elderly. I provided this booklet, published to educate the lay public about avoiding guardianships through powers of attorney, living wills, health care directives, etc., to each of the 144 members of the Legislature. My sticker attached to the booklet references HB 2881, the companion bill to the initial version of ESSB 6257.
As you may already know, ESSB 6257 has the strong support of AARP, the Washington Senior Citizens' Lobby, the Washington Alzheimer Society, the Washington Protection and Advocacy System, the Alliance for the Rights of Children of Washington, the ACLU, and numerous other organizations representing seniors, retirees, and disabled persons and their families. It also has enjoyed the very zealous and tireless support of citizens, including Mr. Don Barovic, Mrs. Mary Lockhart, Mr. Joe Kearney, and others, whose families have been victims of some of the problems with child custody and guardianship case practices that are addressed by this Bill.
Please sign this Bill into law as soon as possible so that we may begin circulating it among those populations that will be affected by in, including the legal and judicial community and other members of the "guardianship industry." Should you or your staff have any questions about the Bill, or are intested in discussing additional guardianship reform issues, please contact me. Thank you.
EnclosuresVery truly yours,
Douglas A. Schafer
cc: Mr. Michael A. Courtney, AARP
Mr. Don Barovic