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Professional Guardian Disciplinary Procedure Survives Constitutional Challenge

Posted Monday, September 8, 2014 by John S. Palmer

The Washington Supreme Court has upheld the procedure established for sanctioning misconduct by certified professional guardians (CPGs). Last month the justices unanimously rejected claims by guardian Lori Petersen that the powers held by the Certified Professional Guardian Board violate the separation of powers doctrine, that the low burden of proof for establishing guardian misconduct violated her constitutionally protected property interest in continued certification, and that the Board’s action against her violated the appearance of fairness doctrine.

Washington defines a professional guardian to be anyone “who is not a member of the incapacitated person’s family and who charges fees for carrying out the duties of court-appointed guardian of three or more incapacitated persons.” General Court Rule 23, adopted in 2000, created the Certified Professional Guardian Board, and although the State Supreme Court ultimately certifies guardians, the Board recommends whether certification should be granted or denied. The Board is also charged with adopting regulations for training and continuing education; establishing standards of practice; and implementing procedures to review any allegation of misconduct. The Board may impose disciplinary sanctions for violations, including decertification.

The disciplinary regulations adopted by the board establish a grievance process (which is summarized here); they include the right to present evidence to a hearing officer, who issues written recommendations to the CPG Board. If the Board recommends suspension or decertification, the decision is automatically reviewed by the State Supreme Court, which renders the final decision.

In the Petersen matter, the Board had recommended that Ms. Petersen be suspended for one year followed by a 24 month probationary period based on findings that she had violated several standards of practice while serving as guardian for an elderly woman with dementia and disabled 18-year old man. (The hearing officer found there had been an inexcusable delay in obtaining new glasses for the woman, who like to read; a failure to timely inform the woman’s family that she had been hospitalized; and a failure to consider the man’s wishes before moving him to a hospice facility.)

Ms. Petersen argued that the CPG Board, which was created by the Supreme Court, violates the separation of powers doctrine because it has legislative, executive and judicial powers, but lacks procedural safeguards to curb potential abuses of power, such as a process for ensuring neutral hearing officers are chosen, adequate review of Board decisions, and rulemaking procedures that prevent abuses of power.

The Supreme Court noted that although the Washington Constitution does not contain a formal separation of powers clause, the doctrine is presumed to exist and may be violated when “the activity of one branch threatens the independence and integrity or invades the prerogatives of another.” However, it reasoned that the safeguards cited by Ms. Petersen are used in other contexts and are not required here because guardians are officers of the court, and therefore adopting regulations (a legislative function) and prosecuting misconduct (an executive function) are within the purview of the judiciary. It also said that adequate procedural safeguards are in place.

Ms. Petersen also claimed that the Board’s action violated the appearance of fairness doctrine, because she had formerly served on the Board and the investigation against her was a “crusade” by another member with, in the court’s words, a “personal vendetta and bias against her.” She also claimed that the hearing officer was hired directly by the Board, giving him a financial incentive to rule in the Board’s favor. The court said, however, that there was no evidence of any actual impropriety and, at least with respect to the hearing officer, a presumption that judicial hearings and judges are fair.

Ms. Petersen also argued that a 2011 decision by the CPG Board lowering the burden of proof for establishing guardian misconduct violated her constitutionally-protected property interest in continued certification. That decision lowered the evidentiary standard from “clear and convincing evidence” (the standard required to prove physician misconduct, and which Ms. Petersen argued was by analogy the proper standard to use to prove guardian misconduct) to the “preponderance of the evidence” standard. (Curiously, the court’s opinion does not address Ms. Petersen’s claim that the change was initiated by the same Board member with the alleged vendetta against her, and was apparently adopted at the same meeting in which the Board voted to file the complaint against her. Nor did it directly address the claim made in an amicus brief by the Washington chapter of the National Association of Elder Law Attorneys that the appearance of fairness doctrine was violated because “only three of the Board’s 13 voting members supported moving forward with the complaint” with 7 abstaining and 3 absent.)

In analyzing whether lowering the burden of proof violated Ms. Petersen’s property rights, the court balanced the private interest at stake, the risk of erroneous deprivation, the probable value of requiring the higher evidentiary standard, and the government’s interest. It found that while the private interest in guardian certification is substantial, the required training and experience is “not commensurate with the requirements for a medical practice,” whereas:

The State’s interest, on the other hand, is very significant. The State is the ultimate guardian of the ward and bears responsibility for protecting the ward’s person and estate, while the appointed guardian is just an officer of the court…More importantly, guardians are appointed only for the most vulnerable individuals who are incapable of making their own critical decisions, much less vindicating their rights. This factor weighs strongly in favor of finding the lower standard of proof is sufficient in guardian discipline cases…We find no error in the Board’s decision to apply a preponderance standard to its disciplinary process: the private interest involved does not outweigh that of the State, and the Board has provided ample procedures to ensure that the risks of erroneous deprivation are minimal.

The court did remand the case back to the CPG Board to consider whether the sanctions sought against Ms. Petersen are commensurate with those imposed in other cases; however, the burden will be on Ms. Petersen, as the party facing discipline, to prove disproportionality.

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