Law Office of John S. Palmer Attorney at Law

Guardians and Healthcare Decision Making

Posted Friday, July 26, 2013 by John S. Palmer

The Washington Supreme Court has unanimously held that a guardian’s decision not to place her ward in a nursing home, based on a good-faith determination that the ward opposes such placement, cannot be the basis for a finding of neglect against the guardian.

The case illustrates the difficulties a guardian may encounter when an incapacitated adult lacks the resources to pay for in-home care, but refuses to leave home for more appropriate and affordable care.

The facts of the case (Raven v. DSHS, decided July 18, 2013) are disturbing. Ida, a retired nurse, became bedbound in 1996. She was resistant to medical care and at times violent and hostile toward her caregivers. The Supreme Court noted that between 1996 and 2004 her life was “rife with episodes of self-neglect, problems with her caregivers, and medical crises.”

In 2004, Resa Raven, a certified professional guardian, was appointed as Ida’s guardian. It was Raven’s first appointment as guardian. She determined that Ida, when competent, had consistently refused to be placed in a nursing home or other long-term care facility. However, Ida relied primarily on Medicaid benefits to pay for in-home care because she lacked the resources to pay for it herself, and DSHS would not pay for 24-hour in-home care.

Therefore, Raven struggled to meet Ida’s care needs while honoring her desire to stay at home. Finding and keeping a primary care physician, medication management, and bedsores were recurring problems. Finally, in late December 2006, a social worker with Providence Home Care called Adult Protective Services; APS investigated and with Raven’s consent, Ida was hospitalized. She died 4 months later, while still in a temporary rehabilitation treatment center.

After her death, DSHS found that Raven had engaged in a pattern of conduct or inaction that constituted neglect, which led to several appeals: an administrative law judge ruled against Raven; a superior court judge ruled in her favor; the Court of Appeals ruled against her, and now the Washington Supreme Court has ruled in her favor.

These decisions illustrate how difficult it can be to balance an individual’s right to reject unwanted medical care with the desire to ensure guardians protect society’s most vulnerable citizens. The Supreme Court said that in evaluating a guardian’s actions in this regard, courts cannot apply a “reasonable person” test, but must apply a subjective test based on the ward’s attitudes, biases and preferences:

One of the difficulties of this case from the perspective of Ida’s care team is that Ida often required more care than could be delivered in a home setting. But in matters of consent, though a ward may choose a course of action that would strike many as unreasonable, if the guardian can determine that the ward would choose such an action if competent, the guardian is bound to advocate for that position.

In support of this conclusion, the court quoted its 1984 decision of In re Guardianship of Ingram, in which a guardian sought a court order to force a ward to submit to a laryngectomy for cancer treatment, when the ward favored radiation:

“The goal is not to do what most people would do, or what the court believes is the wise thing to do, but rather what this particular individual would do if she were competent and understood all the circumstances, including her present and future competency.”

The court found that this requirement to stand in the ward’s shoes when making medical decisions can also be found in Washington’s informed consent statute (RCW 7.70.065) which states that before any person authorized to consent to medical treatment on behalf of an incapacitated adult exercises that authority, “the person must first determine in good faith that that patient, if competent, would consent to the proposed health care. If such a determination cannot be made, the decision to consent to the proposed health care may be made only after determining that the proposed health care is in the patient’s best interests.”

The Supreme Court concluded that based on this statute and the Ingram decision, Raven’s good-faith determination that an out-of-home placement was contrary to Ida’s wishes “cannot serve as the basis for a finding of neglect.” To hold otherwise would suggest “that guardians must institutionalize their wards or risk neglect findings.” It added that even if Raven had chosen to disregard her determination of Ida’s wishes, a nursing home placement would have still violated RCW 11.92.190, which states that “no residential treatment facility which provides nursing or other care may detain a person within such facility against their will.”

The court then considered whether a finding of neglect could be supported by any breaches of a guardian’s statutory duties or Washington’s Standards of Practice for Certified Professional Guardians. The court found that the record supported the findings that Raven had failed “in her duty to adequately research and regularly review Ida’s residential options; failed in her duty to become and stay informed as to Ida’s medical needs; and failed in her duty to make meaningful, in-person contacts with Ida that allowed her to observe Ida’s circumstances and interactions with caregivers.” However, it concluded that:

On this record, there is not substantial evidence demonstrating that among the many forces at play here, Raven’s shortcomings as a guardian resulted in a failure to provide goods or services or avoid harm to Ida. On the contrary, despite several professional missteps, the evidence indicates that Raven was reasonably diligent in securing Ida’s medication, services from doctors and other health professionals, and worked with the care agencies on the staffing shortfalls.

The court declined to adopt DSHS’ position that Raven had a duty to ensure Ida accepted care offered to her, because it would set up “an untenable standard for guardians akin to strict liability.” It also denied Raven’s request that DSHS pay her attorney fees, noting that the agency’s actions were substantially justified because regardless of whether Raven’s conduct constituted neglect, the record demonstrated “several significant shortcomings” in her conduct as guardian.

The case attracted the attention of professional guardians, elder law attorneys, and disability-rights groups; several organizations submitted amicus curiae briefs, including the Washington Association of Professional Guardians, the Washington Academy of Elder Law Attorneys, ARC of Washington and the Long Term Care Ombudsman Program.

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