What we do as Guardian of the Estate
Lavonda Ataid, Trust Officer
Financial exploitation has become a common occurrence. The exploitation runs the gamut from telephone scammers to embezzlement by trusted advisors, or perhaps worse, coercion from caregivers and family members.
Often the Court must intervene and appoint a Guardian of the Estate to protect the financially incapacitated person. However, the Court retains oversight of the activities of the Guardian high qualification standards and duties for the Guardian. As a Certified Professional Guardian managing guardianships in Washington and North Idaho, we are mindful of our role as the Guardian of the Estate and the duties we have to the incapacitated person (IP), the estate, and last but not least the court.
The Guardian of the Estate has a duty to the IP to be a wise manager of the estate assets and to verify the IP’s care needs are met. The law requires a monthly visit to the IP for the Guardian of the Person and a quarterly visit to the IP by the Guardian of the Estate, unless waived by the court for good cause. These visits are to assess the IP’s condition and care and report this to the court if changes are necessary.
As professional guardians, we report to all parties, including the IP, the court, family members and professionals.
Letters of Guardianships
The evidence of guardianship authority are “Letters of Guardianship” issued by the Superior Court. This document requires an annual renewal of the Letters of Guardianship.
The role of Guardian of the Estate is to protect the personal and economic interest of the IP and to act in their best interest. As a professional guardian, we create clear, written investment objectives with our investment advisors and monitor the performance of the portfolio. This performance is provided to the Superior Court in the annual accounting. The law requires the guardian to receive court approval for investments if the investments are not held in an interest bearing account insured by either the State of Washington or federally insured.
Extensive coursework provided by the University of Washington is a requirement to become a Certified Professional Guardian. Additionally, the Certified Professional Guardian needs 15 hours of Continuing Education per year.
STANDARDS OF PRACTICE
Revised Standards of Practice were issued by the Washington Courts effective January 31, 2012, which apply to Certified Professional Guardians. While the Standards of Practice only apply to Certified Professional Guardians, the non-professional guardian should also review them as a roadmap to guardianship duties. A few highlights include:
Respect for Relationships
The Guardian shall work with the IP or family members for the benefit of the IP. The Guardian shall seek professional evaluations when necessary to assist the IP. The Guardian shall also have a working knowledge of services and facilities available in the community.
Independence and self-reliance shall be maximized consistent with protection and safety of the IP. The Guardian shall consult with the IP to attempt to implement the IP’s desires regarding feelings, values, and preference for residential placement. In other words, the Guardian cannot substitute their own judgment regarding the IP if the IP has made his/her opinion known. The Guardian, to the extent possible, shall select a residence that enhances the quality of life of the IP.
When making financial decisions, the Guardian of the Estate should obtain information regarding the IP’s past behavior or wishes prior to their incapacity. The Guardian of the Estate is to keep the IP informed of estate assets and the expenses of the estate; this can be done by sending the IP a financial statement on at least an annual basis.
Conflicts of Interest
The Certified Professional Guardian cannot provide direct care of the IP without permission of the court. The Guardian also cannot accept a gift from the IP other than normal social hospitality. Additionally, the Guardian cannot receive compensation from a third party.
Duty to the Estate
The Guardian of the Estate is to exhibit the highest degree of trust, loyalty and attentiveness to the IP’s estate. This means that the Guardian is to keep accurate and complete records. It is the responsibility of the Guardian to uphold the court ordered bond and blocked accounts, safeguard real property and personal property assets, preserve life insurance policies and other valuable assets.
Guardianship laws create solid accountability to the court and the incapacitated person. They set a high bar for both professional and non-professional guardians that will ultimately benefit the most vulnerable persons who are depending on us for their care and financial well-being.
Print Date: Spring 2012