DECEMBER 12, 2011 VOLUME 18 NUMBER 42
Last month we saw an interesting variation on fee requests for guardianship and conservatorship proceedings. A Washington State Supreme Court case dealt with the payment from wards’ estates to a professional fiduciary organization in unusual circumstances.
James R. Hardman and his mother Alice Hardman are certified professional guardians under Washington State’s guardianship regulation program. As in Arizona, the program is operated by the state Supreme Court, and requires testing, training and reporting to a court-operated agency. In addition, Washington professional guardians are required to report to the local probate judge once each year on the finances and welfare of each individual ward — just as all other guardians do.
The Hardmans are guardians of the person and the estate (in Arizona we would say guardians and conservators) of “more than 20” developmentally disabled adults residing at a state-run residential facility known as Fircrest School. They handle their wards’ finances, make health care decisions and determine the proper placement for each ward, and no allegations were raised that they do that work anything other than conscientiously and well. Because they are so deeply involved in the developmental disability community, they are also very active in advocacy efforts. They lobby state, local and federal agencies and elected officials and they vigorously oppose efforts to transfer Fircrest residents to residential placements that they believe provide inadequate care.
The Washington guardianship regulation scheme assumes that guardians like the Hardmans should be paid no more than $175/month from their wards’ funds for guardianship services. There is a mechanism for seeking more fees, however, when it is required because the ward has unusual issues. The regulation particularly describes the possibility of convoluted property transactions, interaction with criminal courts for a ward who has gotten into legal trouble, extensive or emergency medical services, or similar complications.
The Hardmans estimate that their advocacy work consumes 80-100 hours per month. They believe that it benefits all of their wards. They sought approval of not only the ordinary $175/month payment in each case, but an additional $150/month from each ward to compensate them for advocacy for the residents of Fircrest.
The effect of approving the higher fees would have a direct effect on the state programs for the developmentally disabled. Because reasonable guardians fees are deductible from a resident’s share of cost under Washington law (this varies from state to state, and would not be handled the same way in Arizona, for instance), the $150/month per ward would effectively reduce the total amount paid by residents to the state by as much as about $50,000 paid to the Hardmans.
Although the first judge hearing the matter agreed and allowed the Hardmans their higher fees in a single case, the next two times it was considered their request was denied. The case ended up before the state Supreme Court, which ruled that the Hardmans could not collect fees from their individual wards to fund their general advocacy work.
There are a number of problems, in the state high court’s view, with the Hardmans’ request. The actual amount requested, and the justification of the amount of time spent, was different in the two cases considered by the court. The direct benefit to individual wards was not clear to the Justices. The advocacy work might arguably benefit the class of guardianship wards, but the high court did not believe it was “necessary” to the actions of a guardian — a requirement of the state law governing fee requests.
One of the more intriguing ideas promoted by the Hardmans was that denial of their request would effectively deprive their wards of their constitutional rights to free speech and to petition the government for redress of grievances. Not so, ruled the Justices — they could still speak out through advocates provided to them by the system, and nothing prevented the Hardmans from continuing their own advocacy work. It was just not required that their guardians should be compensated for that advocacy — particularly since that would put the probate judge in each individual case in the untenable position of having to decide which “speech” would need to be protected and paid for. In the Matter of the Guardianship of Lamb, November 23, 2011.