HOT TOPICS FOR CPGs
King County Bar Association
Rainier Square Conference Center, Third Floor Atrium
1301 Fifth Avenue, Seattle
November 7, 2007

MEANINGFUL IN-PERSON CONTACT WITH THE INCAPACITATED PERSON

Tom O'Brien

Disclaimer: as is always the case in general discussion of guardianship, it is impossible to address every combination of guardianship authority. The following addresses full guardianship of the person, unless otherwise stated.

1. Sources

1.1. RCW 11.88.043(4)
Consistent with the powers granted by the court, 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, assert the incapacitated person's rights and best interests, and if the incapacitated person is a minor or where otherwise appropriate, to see that the incapacitated person receives appropriate training and education and that the incapacitated person has the opportunity to learn a trade, occupation, or profession."

1.2. Standard of Practice 401.15
Guardians of the Person shall have meaningful in-person contact with their clients as needed and shall maintain telephone contact with care providers, medical staff, and others who manage aspects of care as needed and appropriate. Meaningful in-person contact shall provide the opportunity to observe the incapacitated person's circumstances and interactions with care givers.

Standard of Practice 401.16
Guardians of the Estate only shall maintain meaningful in-person contact with their clients as necessary to verify the individual's condition and status and that financial arrangements are appropriate.

Standard of Practice 401.6
The guardian must know and acknowledge personal limits of knowledge and expertise and shall assure that qualified persons provide services to the incapacitated person.

1.3. NGA Standards of Practice,

Standard 13 Guardian of the Person: Initial and Ongoing Responsibilities

V. The guardian shall visit the ward no less than monthly.

A. The guardian shall assess the ward's physical appearance and condition and assess the appropriateness of the ward's current living situation and the continuation of existing services, taking into consideration all aspects of social, psychological, educational, direct services, and health and personal care needs as well as the need for any additional services.

B. The guardian must maintain substantive communication with service providers, caregivers, and others attending to the ward.

C. The guardian must participate in all care or planning conferences concerning the residential, educational, vocational, or rehabilitation program of the ward.

D. The guardian shall require that each service provider develop an appropriate service plan for the ward and must take appropriate action to ensure that the service plans are being implemented.

E. The guardian shall regularly examine all services and all charts, notes, logs, evaluations, and other documents regarding the ward at the place of residence and at any program site to ascertain that the care plan is being properly followed.

F. The guardian shall advocate on behalf of the ward with staff in an institutional setting and other residential placements. The guardian shall assess the overall quality of services provided to the ward, using accepted regulations and care standards as guidelines and seeking remedies when care is found to be deficient.

NGA Standard 3. The Guardian's Personal Relationship with the Ward

             I. The guardian shall avoid personal relationships with the ward..

1.4. New Century Dictionary

Visit: To go or come to see (a person or thing) in the way of friendship, business, curiosity, ceremony or duty; call upon; proceed to in order to view or look on.

Meaningful: Full of meaning; significant. [In it's roots in language and common usage"meaningful" usually is used to describe the basis for an opinion or belief]

Interestingly, the NGA term "visit" with its nuances of meaning, is substituted in the SOP's with the more operational "in-person contact".

2. How often visits are required

The NGA states a specific flat span of time, monthly. In my opinion this is an unnecessarily dogmatic approach.

Washington does not specify a time span, but it is fair to say as a general rule that monthly visits are standard unless the client is in circumstances that merit more or less frequent in-person contact. I believe that most professional guardians, and actual practice even among most NGA members is to apply a more personalized standard. The need for in-person contact on a less frequent basis than quarterly is probably suggestive of circumstances in which limits on the guardianship should be considered, or an explanation made and approved by the court.

It is a plain fact that the compensation rate for Medicaid guardians is not sufficient to cover monthly visits to far flung clients, particularly in the more rural sections of the State where availability of guardian services is geographically limited.

Occasionally. A guardianship client's whereabouts will be unknown. The guardian should make effort, including hiring an investigator if possible, to locate the person. Regular calls to local jails and hospitals may also be appropriate.

3. Why in-person contact is required

3.1. To observe the conditions in which the client is living

3.2. To convey to caregivers that there is on-going interest in the well being of the client and informed review of the client's circumstances

3.3. To meet and communicate with the guardianship client so that the guardian will be as informed as possible about the person's attitudes and concerns.

3.4. To assure the guardianship client the guardian is available and concerned.

4. Activities of the guardian

The NGA standard sets out the things a guardian does during on-site visits. The guardian needs to observe both the guardianship client and the client's living circumstances to assure that there is and continues to be a good fit between the client and the service providers. For example:
Observing other residents of care settings is useful. People should look satisfied, occupied properly dressed and clean.
Meal and bedtimes should be age and culturally appropriate.
Medications should not be used as an alternative to personal attention.
Staff should appear interested and available to residents.
Meals should be appetizing.
Records should be available and in proper order.
The guardian should visit at different times of day and visit unannounced.

The drawback to the SOP and the NGA standards are that they assume a client who is in a residential setting most of the time. For the guardian who has been successful in arranging less restrictive arrangements, or whose guardianship client does not accept appropriate care, the importance of in-person contact is at least as great. In many cases the professional agenda that is available in more structured settings has to give way to relationship building.

For clients who reside in less structured settings or whose requirements include a fair amount of community involvement, but whose arrangements are satisfactory and appropriate, the guardian should try as much as possible to meet with and observe the client in non-residential settings such as day centers or places of work. Often these clients will be primarily interested in financial issues under the guardian's control. The guardian of the estate should always remain interested in the client's personal circumstances and alert to changes in the client's needs.

Guardians very often are involved with clients who are successful in avoiding the level of medical care, physical supervision or safe behavior that was the goal of the appointment of the guardian. Typically, these are people with dementia, mental illness, or head injury who do not acknowledge their functional limitations or the need for help; and with sufficient capacity or help from third parties to avoid external controls. How to manage such circumstances is somewhat beyond the scope of this presentation. However, the need for in-person contact is probably increased, if often difficult to accomplish, for these clients.

Often the guardian's professional agenda can must take a back set to efforts to simply get the client to tolerate the presence of the guardian or other professional. A guardian in such cases needs to be persistent in seeking to make contact, even if that means frequent trips to a home where the door is not opened. Commonly, persistence and creativity in this regard is rewarded in unexpected ways that would not occur were the guardian to focus exclusively on medicine, nutrition, record keeping and the like.

In a similar vein, no standard is a bar to establishing an informal relationship with a client.

4.1. Personal relationships

The question of whether and how a professional guardian should foster a personal relationship with a client is vexing. The NGA standard is that "the guardian shall avoid personal relationships with the ward". This is a fairly standard professional expectation. It begs the question, however, what to do to meet the duties of a guardian to a person who has few or no other personal relationships.

The work of a guardian could hardly be more personal. A guardian's very existence in a person's life is the result of a transfer of personal decision making to the guardian–something that is so unlike any other professional role that formal legal proceedings are necessary to create the relationship. The decision standards that apply to guardians place a very high premium on discovering and abiding by the competent personal preferences of the client.

With reference to the dictionary definition of "visit", the purposes set out in the SOP, in the NGA standards and in common practice are focused on the "business" and "duty" part of the guardianship. I believe that the statutory duty to "care for" the individual and to see to the best interest of the person go further. I believe that as much as possible, visits "by way of friendship" should be made or arranged by the guardian. Everyone needs to have personal and social contacts that are, or appear, relatively free of professional agendas. Despite prevalent beliefs to the contrary, many people who have guardians come to really like it and to like the guardian or guardians representative that they see regularly. The work of a guardian is necessarily like what diligent family members do, and it should not be unexpected that the client will, for better or worse. come to view the guardian as a family like person.

5. Who acts for the guardian as to in person contacts.

This is another sometimes vexing question, and one that the Certification Board is presently considering. This presentation does not address matters of delegation and contracting for service beyond acknowledging that these things can be appropriately done.

A plain reading of the standards and, indeed, observation of general practice are that the individual who is appointed as guardian or an employee of an appointed guardianship agency will do most of the activities connected with the standard requirements. Many if not most of the individually appointed professional guardians in Washington have experience and expertise in managing personal care issues and in assessing care situations. Guardianship Agencies always, to the best of my knowledge, employ professional care managers especially for this purpose.

In practice, however, not all working professional guardians have the necessary knowledge and skills to competently meet the standards, and employ contracted professionals to this end. The guardian who contracts for services that include in-person contact and review of care arrangements needs to consider how standards of practice affect this arrangement.

The extreme, but plausible, example is an appointed guardian whose orientation is strongly toward financial management, the law or some other pursuit that does not include care management. Such a guardian would be obligated to bring in someone with the necessary skills to provide care management. Given the importance of relationship building in care management, this guardian's visits would run the risk of being more ceremonial than "meaningful".

6. Who else should have meaningful in-person contact

The importance of meaningful personal contact to a guardianship client does not end with carrying out the duty of the guardian. There are many such experiences the guardian can arrange that have advantages to the client and also enhance the guardian's management of care. These include facilitating family involvement unless there is a reason not to and involving the client in whatever social experiences may be ferreted out.

When finances allow, it is common to employ paid companions to do things like take the client shopping, for hair and nail care and similar off sit activities; to take the client to doctor's appointments at which the guardian's presence is not needed; to simply socialize with the client at home; and in some cases to accompany the client to cultural or sporting events. Typically, this paid companion forms a close bond with the client. When this occurs, it can reduce frequency with which the guardian needs to make visits. The guardian and the companion need to work closely, because when crises large and small occur, the companion is often an important part or working directly with the client.