A recent decision by the Washington state Supreme Court, Raven v. Department of Social and Health Services, clarifies the duty of a guardian of the person to take an incapacitated person’s preferences into account in making residential placement decisions. The case also provides a detailed analysis of a guardian’s conduct in light of the Certified Professional Guardian (CPG) standards, and should be reviewed by all professional guardians of the person.
The facts of the case are generally as follows: Ida, an elderly woman, became bedridden after a fall, and suffered various other ailments, including dementia. Ida had a long history of independence and reliance on alternative medicine. Ida was resistant to medical care and was violent, hostile, and uncooperative towards her caregivers, including family members. Ida’s lack of mobility, combined with her behavior towards her caregivers, led her to develop an ongoing problem with bedsores.
After Ida was adjudicated incapacitated, Resa Raven (“Raven”) was appointed as guardian in 2004. Raven was a licensed mental health counselor and certified professional guardian, though Ida was Raven’s first ward.
An ongoing issue was whether Ida should remain in her home. Ida’s CPG, Raven, reviewed Ida’s history and medical situation. She determined that Ida, when competent, consistently refused to be placed in a nursing home or other long-term care facility. Accordingly, Raven consented to a care plan that kept Ida in her home. Raven also located a primary care physician for Ida and worked with the care team on developing a plan to address Ida’s bedsores. However, the care provider team was short-staffed, and the Department of Social and Health Services (DSHS) had not yet approved payment for additional care hours. Even after DSHS approved the additional care hours, Ida’s high level of need and combative personality caused ongoing difficulties in maintaining the appropriate level of care.
In 2006, a medical social worker informed Raven that she believed Ida needed 24-hour nursing home care. Raven did not believe she could authorize such a placement against Ida’s wishes. Raven attempted to have Ida involuntarily committed by a designated mental health provider, but the designated mental health provider concluded Ida did not fit the criteria for involuntary commitment. On December 14, 2006 a storm knocked out the power to both Raven and Ida’s homes. Raven was unable to call or leave her home for several days. During that time Ida’s condition worsened. She eventually was taken to the hospital and later a rehabilitation facility, but passed away on April 24, 2007.
DSHS investigated, and made a founded finding (a determination by DSHS staff) of neglect against Raven, claiming that there was a pattern of conduct or inaction constituting neglect. An administrative law judge reversed the finding, but a DSHS review judge reinstated it. A Pierce County Superior Court judge found that no neglect occurred, but again the finding was reinstated, this time by Division Two of the Court of Appeals. Raven appealed to the state Supreme Court.
The state Supreme Court ruled on two (2) substantive issues: (1) whether a guardian’s good faith decision not to place an incapacitated person in a nursing home against the incapacitated person’s wishes can be the basis for a finding of neglect, and (2) whether there was substantial evidence in this case to support a finding of neglect. The Court ruled in favor of Raven on both issues, though the Court did offer some criticisms of Raven’s actions.
As for the first issue, the court reasoned that RCW 7.70.065(1)(c) specifically directs a person authorized to provide informed consent for health care (such as a guardian of the person) to “first determine in good faith that the patient, if competent, would consent to the proposed health care.” Raven had considered Ida’s long-standing resistance to traditional medicine and her wish to die at home with minimal medical intervention, and had made a good faith determination based on those facts. The court pointed out that “it does not matter whether the ward’s choice might not be what most people would do or find prudent.” Accordingly, Raven’s good faith determination that nursing home placement was contrary to Ida’s wishes could not serve as the basis for a finding of neglect.
With respect to the second issue, the court evaluated each of Raven’s actions against the CPG standards. DSHS had determined that Raven violated those standards when she allowed Ida to receive substandard care, lacked knowledge about residential alternatives and an understanding of Ida’s medical needs, failed to visit Ida frequently, and did not resign as guardian when Raven could not find enough staff to fully implement Ida’s care plan. The court agreed that Raven’s conduct fell short of the CPG standards in certain respects, such as her lack of frequent visits with Ida (which the court described as “very troubling”) and her failure to research residential placement alternatives. However, in other respects Raven had fulfilled her duties. Additionally, the court found that DSHS had erroneously interpreted the CPG standards to require Raven to ensure Ida accepted the plan of care, or to overcome staffing or behavioral problems beyond Raven’s control. Such an interpretation would create a “strict liability” system for guardians, meaning that a guardian would be liable for harm suffered by the incapacitated person regardless of whether the guardian was at fault. Overall, “despite several professional missteps,” Raven’s conduct did not amount to neglect, particularly given the challenges of this situation.
While the court recognized that there were difficult circumstances beyond Raven’s control, DSHS and the court system held Raven responsible for all aspects of Ida’s care, showing the limits of deferring important decisions to the caregiving team. The court was also very concerned about the lack of visits and personal interaction between Ida and Raven. Although she was mostly exonerated, the litigation was a harsh experience for Raven. After the appeal concluded, her request for attorney fees was denied. Guardians of the person should pay careful attention to this aspect of the case.