In re the Guardianship of Lamb
In re the Guardianship of Lamb
Opinion of the Court
¶1 The decision to award guardian fees lies within the discretion of the superior court. But the court may award fees only for work performed by the guardian that directly benefits the ward. In this appeal, we are asked to decide whether James and Alice Hardman, the coguardians of Sandra Lamb and Rebecca Robins, may be compensated for engaging in the specific advocacy activities listed in their advocacy report. Because the Hardmans fail to establish that these activities provide a direct benefit to their wards, we hold that they are not entitled to compensation under the facts of this case.
FACTS
¶2 James Hardman and his mother, Alice Hardman, are certified professional guardians.
A. Sandra Lamb
¶3 Lamb is a 53-year-old woman with a medical diagnosis of “profound mental retardation” resulting from a meningitis infection she suffered sometime before age three. With communication skills level comparable to a two-and-one-half- to three-year-old, Lamb has multiple disabilities, including limited speech and articulation, seizure disorder, mild microcephaly, hearing loss, and hemiplegia. She receives a monthly income of $1,106 in Social Security Administration benefits and is the beneficiary of a special needs trust established in 2008.
¶5 On May 2, 2008, the Hardmans filed a triennial guardian’s report for Lamb. In their report, the Hardmans requested approval of their guardian fees for the prior reporting period. They also sought an allowance for the new three-year period of $225 per month for guardian fees for routine services and $150 per month for “special advocacy fees.” In support of their request for special advocacy fees, the Hardmans attached a 16-page document, titled “Advocacy Report of James R. Hardman,” listing various advocacy activities undertaken from January 2004 until February 2008.
bills which would extend to RHC residents the rights . . . contained in RCW 70.129; incentives for Washington colleges to include courses concerning the treatment of people with developmental disabilities [DD]; background checks for all who care for people with DD; funding for RHCs; and, whistleblower protection for professionals who treat people [i]n RHCs.
The report further describes the Hardmans’ efforts to prevent certain types of development around the Fircrest area by attending land use meetings. Finally, the report describes the informational and public relations materials produced by the Hardmans, including a monthly newsletter and a PowerPoint presentation about the challenges facing Fircrest residents. Though the report states that “[t]hese efforts are not easily segregated from one another,” it justifies the Hardmans’ request for a monthly allowance of $150 for each ward by taking the total time spent on advocacy, approximately 80 hours, divided by the total number of the Hardmans’ wards at Fircrest, and multiplying that number by Mr. Hardman’s hourly rate.
¶6 DSHS filed an objection to the Hardmans’ request for the proposed fees on June 2, 2008. The Hardmans filed a response, a supplement to Lamb’s report, and declarations regarding fees for routine services and for “ongoing special advocacy activities.” In the declarations, the Hardmans increased their request for routine services to $235 per month and explained that the advocacy fees were justified because
The Hardmans reiterated themes stated in their advocacy report — namely, that their advocacy efforts were necessary to combat the political threat posed by key DSHS officials, disability rights organizations, and real estate developers that favored closing Fircrest.
B. Rebecca Robins
¶7 Rebecca Robins is a 53-year-old woman suffering from “profound or severe mental retardation” since birth. Functioning at a level comparable to that of an 18-month-old, Robins has no speech abilities and has been diagnosed with autism, scoliosis, self-injurious behavior, and aggression. She receives a monthly income of $892 from a railroad retirement account.
¶8 Robins has resided in Fircrest since 1984. In 1985, the King County Superior Court deemed Robins an IP. Due to her “tantrum like behavior with repeated spitting and kicking,” Dr. Miller recommended against community placement, reasoning that her behavior “would likely make it extremely difficult or almost impossible for her to be [in] a community group home setting.” Ms. Hardman was appointed guardian of the person and estate of Robins in 1993, and Mr. Hardman was appointed coguardian in 1998.
¶9 On May 9, 2008, the Hardmans filed a biennial guardian report for Robins, seeking approval of their guardian fees for the prior reporting period and an allowance for the new three-year period of $235 per month for guardian fees for routine services and $150 per month for “special advocacy fees.” In support of their request for “special advocacy fees,” the Hardmans attached the same advocacy report that they had submitted for Lamb.
¶10 On June 6, 2008, at a joint hearing for Lamb and Robins, the commissioner approved both reports and awarded an allowance of $175 per month for guardian fees for routine services and $150 per month for special advocacy activities. The commissioner found that Mr. Hard-man’s declaration regarding ongoing advocacy activities sufficiently stated the “causal connection between the advocacy work that’s being done and the individual benefit that’s being conferred.” The commissioner required the Hardmans to “submit a report specifically reporting the time spent on advocacy and specifically relating the benefit conferred by that advocacy” on Lamb and Robins at the next accounting.
¶11 On June 16,2008, DSHS filed a motion to revise the commissioner’s orders. The Hardmans filed a response. Hearings were held in King County Superior Court on August 28 and September 5, 2008. In revising the orders and partially denying the Hardmans’ request for advocacy fees, the superior court differentiated between the advocacy activities described in the report:
a. The political and lobbying activities undertaken by Guardians are outside the scope of their guardianship of Ms. Lamb. The Guardians’ request for extraordinary fees for the next reporting period are denied to the extent that those fees relate to political and lobbying activities.
b. Community outreach activities that are necessary to protect the best interests of Ms. Lamb are within the scope of the guardianship. Therefore, the Motion to Revise is denied and the Guardians’ extraordinary fees claimed for the next reporting period are allowed to the extent that those fees relate to community outreach that is necessary to protect the best interests of Ms. Lamb. The court finds that the fees for those activities currently amount to between $50 and $75 per month.
The Hardmans filed motions for reconsideration, which the court denied without explanation.
STANDARD OF REVIEW
¶13 A superior court’s award of guardian fees and costs is reviewed for an abuse of discretion.
ANALYSIS
A. Compensation for the Hardmans’ Advocacy Activities
¶14 The Hardmans contend that they are entitled to compensation for their advocacy activities as the personal
¶15 In Washington, a guardian is entitled to “such compensation for his or her services ... as the court shall deem just and reasonable.”*
¶16 In re Guardianship of McKean
¶17 In this case, the Hardmans have not shown that their advocacy activities directly benefit Lamb and Robins. Essentially, the Hardmans claim that the direct benefit derived from their advocacy activities is the prevention of their wards’ removal from Fircrest. But the Hardmans’ advocacy activities do not provide this benefit since none of the perceived threats to Fircrest, as described in the reports, would have necessarily led to its closure and forced Lamb and Robins to relocate. Nor have the Hardmans presented any expert evidence in support of their opinion that maintaining Lamb and Robins at Fircrest would be in their best interests.
¶18 On DSHS’s cross appeal, we reverse the court’s award of a monthly allowance of $75 for the Hardmans’ community outreach activities on the same grounds. Even if the Hardmans had demonstrated a direct benefit from their community outreach activities, the court’s order contains insufficient findings supporting the amount of the award to permit appellate review.
¶20 First, the Hardmans raise a preemption argument, claiming that the state guardianship statutes conflict with certain provisions of the Medicaid Act — namely, 42 U.S.C. § 1396p(a)(l) and (b)(1).
¶21 “Where Congress has not expressly preempted or entirely displaced state regulation in a specific field, as with the Medicaid Act, ‘state law is preempted to the extent that it actually conflicts with federal law.’ ”
¶22 Contrary to the Hardmans’ position, no conflict exists between state statutes “imposing financial liability” and the Medicaid Act because federal regulations imple
¶23 The Hardmans next argue that state guardianship statutes abridge the superior court’s powers to award guardian fees, citing Blanchard v. Golden Age Brewing Co.
¶24 Finally, the Hardmans and amicus American Civil Liberties Union of Washington argue that the superior court’s orders deprive Lamb and Robins of their rights to petition the government under the state and federal consti
B. Attorney Fees
¶25 The Hardmans request an award of attorney fees on appeal under RAP 18.1 and RCW 11.96A.150.
CONCLUSION
¶26 The Hardmans fail to establish that the advocacy activities listed in their report provide a direct benefit to their wards. We therefore affirm the superior court’s decision denying an allowance for the Hardmans’ political and lobbying activities, though on different grounds,
Review granted at 169 Wn.2d 1010 (2010).
RCW 11.88.008 defines a “professional guardian” as “a guardian appointed under this chapter 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.”
In the advocacy report, the Hardmans claim that “Lamb’s suffering appeared to cease the moment she returned. The transformation in her mood was stunning. She has been extraordinarily happy since returning to Fircrest.”
The report also extensively discusses the Hardmans’ litigation efforts. The Hardmans are not seeking compensation for the time spent on litigation in this case.
The American Civil Liberties Union of Washington filed an amicus brief in support of the Hardmans. Disability Rights Washington filed an amicus brief in support of DSHS.
In re Guardianship of Spiecker, 69 Wn.2d 32, 34-35, 416 P.2d 465 (1966) (citing In re Estate of Leslie, 137 Wash. 20, 241 P. 301 (1925)).
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971) (citing MacKay v. MacKay, 55 Wn.2d 344, 347 P.2d 1062 (1959)).
Dix v. ICT Grp. Inc., 160 Wn.2d 826, 833, 161 P.3d 1016 (2007).
See Ang v. Martin, 154 Wn.2d 477, 481, 114 P.3d 637 (2005).
Wash. Cedar & Supply Co. v. Dep’t of Labor & Indus., 137 Wn. App. 592, 598, 154 P.3d 287 (2007) (stating that agency rules are reviewed de novo as if they were statutes, but that the court gives “substantial weight to an agency’s interpretation of statutes and regulations within its area of expertise”).
Under ROW 11.92.043(4), a guardian of a ward’s person is charged with the duty “to care for and maintain the incapacitated person in the setting least restrictive to the incapacitated person’s freedom and appropriate to the incapacitated person’s personal care needs, [and to] assert the incapacitated person’s rights and best interests.”
RCW 11.92.180.
RCW 11.92.180.
In re Guardianship of McKean, 136 Wn. App. 906, 918, 151 P.3d 223 (2007) (citation omitted).
136 Wn. App. 906, 151 P.3d 223 (2007).
McKean, 136 Wn. App. at 909-11.
McKean, 136 Wn. App. at 917-18.
McKean, 136 Wn. App. at 917-18.
McKean, 136 Wn. App. at 919.
Because the Hardmans fail to establish that their advocacy activities directly benefit Lamb and Robins, we need not address whether these activities qualify as “extraordinary services” under WAC 388-79-050.
Estrada v. McNulty, 98 Wn. App. 717, 723-24, 988 P.2d 492 (1999).
The anti-hen provision contained in 42 U.S.C. § 1396p(a)(l) provides that “[n]o lien may be imposed against the property of any individual prior to his death on account of medical assistance paid or to be paid on his behalf under the State plan” and lists two exceptions that do not apply here. The antirecovery provision contained in 42 U.S.C. § 1396p(b)(l) provides that “[n]o adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan may be made, except [under circumstances that are not pertinent to this case].”
The Hardmans explain that “imposing financial liability means “the extent a Medicaid recipient... is required to apply his or her social security benefit to pay towards his cost of care.” The Hardmans later inconsistently argue that “federal law permits, but does not impose, financial liability on Medicaid recipients.”
Lankford v. Sherman, 451 F.3d 496, 510 (8th Cir. 2006) (quoting Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 203-04, 103 S. Ct. 1713, 75 L. Ed. 2d 752 (1983)).
Lankford, 451 F.3d at 510 (internal quotation marks omitted) (quoting Pac. Gas & Elec. Co., 461 U.S. at 204); see also Hankins v. Finnel, 964 F.2d 853, 861 (8th Cir. 1992).
42 C.F.R. §§ 435.725, .733, .832; 42 C.F.R. § 436.832.
See Florence Nightingale Nursing Home v. Perales, 782 F.2d 26, 29 (2d Cir. 1986) (stating that 42 C.F.R. §§ 435.725 and 435.832 “are consistent with the statutory plan that Medicaid funds not be paid to reimburse those costs that patients with resources of their own can afford”).
188 Wash. 396, 63 P.2d 397 (1936).
Blanchard, 188 Wash. at 415.
Blanchard, 188 Wash. at 418.
In re Guardianship of Ingram, 102 Wn.2d 827, 829, 689 P.2d 1363 (1984) (reversing a trial court order imposing surgery to treat malignant cancer of the larynx when the IP expressed a preference for radiation treatment); In re Welfare of Colyer, 99 Wn.2d 114, 123, 660 P.2d 738 (1983) (holding there were “no compelling state interests opposing the removal of life sustaining mechanisms from [a patient in a chronic vegetative state] that outweighed her right to refuse such treatment”); In re Guardianship of Hamlin, 102 Wn.2d 810, 815, 689 P.2d 1372 (1984) (concluding that cardiopulmonary resuscitation could be withheld from irreversibly comatose patient).
The commissioner approved $10,000 for litigation expenses associated with the appeal.
In re Estate of D’Agosto, 134 Wn. App. 390, 402, 139 P.3d 1125 (2006) (noting case law in which attorney fees were denied where difficult or novel issues were presented).
Silverstreak, Inc. v. Dep’t of Labor & Indus., 159 Wn.2d 868, 876, 154 P.3d 891 (2007).
Reference
- Full Case Name
- In the Matter of the Guardianship of Sandra J. Lamb. In the Matter of the Guardianship of Rebecca Robins
- Cited By
- 5 cases
- Status
- Published