Resa Raven v. Department of Social & Health Services (Washington State Court of Appeals Division 2, March 27, 2012), is a sad case that highlights in many ways the limits of guardianship to resolve care issues for seniors. The case involves the neglect and death of senior under the care of a professional guardian.
The senior, referred to in the case only as Ida due to privacy issues, became bedridden after a fall in 1996. Her condition declined and became complicated by dementia that lead her to believe that family members who were providing care were imposters. Ida was uncooperative with care and evidence suggests that her family were unable or unwilling to properly administer pain medication and other care. After numerous reports and a prior inconclusive investigation, in 2204 APS filed for guardianship and Resa Raven, a certified professional guardian was appointed as her limited guardian. ”The trial court gave Raven authority to (1) consent to or refuse medical treatment and (2) decide who would provide care and assistance.”
Raven served as her guardian for 20 months. Based on her historical and ongoing refusal to nursing home placement, Raven attempted to have her cared for at home. Ida's refusal to cooperate with care along with doctor who quit and care agencies that lack staff to provide sufficient hours of care or who were unwilling to cooperate with orders for more regular turning lead to a further decline in health. In the Winter storm of 2006, Ida was left unattended and declined further and died after a brief hospitalization.
After Ida's death DSHS charged Raven with neglect under the Abuse of Vulnerable Adults Act, RCW ch. 74.34.
The Court of Appeals described Raven’s duty to Ida: A court-appointed guardian owes a duty of care to her ward. RCW 11.92.043(4). Specifically, a guardian has a 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 11.92.043(4).
The court acknowledged Raven's duty "did not include guaranteeing effective care and treatment" but did include making every reasonable effort to provide the care Ida needed. Raven argued that because the law does not allow involuntary detention in a residential treatment facility and mental health evaluators had refused to find Ida qualified for involuntary commitment she had not breached any duty. The court found in "failing to aggressively pursue transitioning Ida from home care to residential care, Raven was not balancing Ida's wishes against her medical needs." The court appears to suggest that Raven's obligation was to convince Ida to go into residential care, find adequate in home care, or "step aside" and allow a more experience guardian to be appointed.
The decision made it clear that in negligence cases under the Vulnerable Adult statute it was not necessary to prove the neglect lead to the harm finding that the Act requires DSHS to prove a pattern of conduct resulting in a deprivation of care. But it plainly does not require DSHS to prove that such pattern of conduct caused Ida harm or that if Raven had offered an alternative care plan, Ida would have accepted it.. and that the standard was a mere preponderance of the evidence.
There is much about Raven's handling of the situation that is problematic. She was not making regular visits to Ida to fully assess the seriousness of the situation and try to convince Ida to reconsider residential care. She did not make efforts to find staff to fill all of the care slots funded by DSHS when the care agency had inadequate staff to work all funded shifts or replace doctors and nurses that quit or replace health care workers who refused to comply with hospice orders on care because they disagreed with them. But she also ran up against many problems that plague even the best of guardians. Guardianship does not give the guardian the power to force a ward into residential care and many wards refuse to consent even when the issue is aggressively pursued. Good in home care can be difficult to find or prohibitively expensive for wards who require round the clock care. It is not uncommon for workers, facilities, and even doctors to refuse to continue to work when resources dry up, families are difficult, and wards are uncooperative and the guardian has little control over any of those factors.
The courts response to these very real structural problems with our society's resources and systems of care for the aging is to "agree that Ida’s case presented difficult problems. . . . [which] frustrates the very purpose of her appointment as Ida’s guardian. When Raven reached the conclusion that obstacles were beyond her control, she should have stepped aside."
While every professional who works in the realm of guardianship hates to see a ward this vulnerable receive this little care or attention with this tragic result, we also need to recognize that there may be cases, even with the best of professionals, without good answers. Everyone stepping aside may simply leave no one responsible and even less care for the ward.
We regularly see cases where facilities, family, and friends seek a guardianship to try to force their loved one into residential care when they refuse. It is often our job to explain that guardianship doesn't give them that power although it may give them more tools, such as financial control, to influence the ward. With this case, we will also need to explain that if those tools don't work and a good in home plan cannot be created, they may need to step aside or face claims of negligence. In many of these case what is needed is a plan to get the ward, if possible, to agree to care and get people in place with the legal authority to implement the plan. That may not always be guardianship and may be best pursued through ADR outside the courts.
Another good take away message from the case is that guardians, when appointed, need legal representation. In this case Raven was advised by the court to seek legal representation to address the issue and declined. An attorney might have been able to assist her in petitioning for instructions from the court on how to overcome the challenges she faced, documenting her attempts to get Ida care, and ultimately helping her to resign if no solution could be found. There are many volunteer family guardians operating without legal representation with even less access to community resources and understanding of their legal rights and obligations. That may be unwise. Assuming the duties of a guardian is not a small step and I think all guardians need some assistance from an attorney. Failure to get help when needed can lead to legal liability for them and inadequate care for their ward.
If you would like to set up a consultation to discuss options for caring for a declining loved one or are a guardian needing representation to protect you and your ward, contact us at [email protected] or call us at (206) 459-1908.
The senior, referred to in the case only as Ida due to privacy issues, became bedridden after a fall in 1996. Her condition declined and became complicated by dementia that lead her to believe that family members who were providing care were imposters. Ida was uncooperative with care and evidence suggests that her family were unable or unwilling to properly administer pain medication and other care. After numerous reports and a prior inconclusive investigation, in 2204 APS filed for guardianship and Resa Raven, a certified professional guardian was appointed as her limited guardian. ”The trial court gave Raven authority to (1) consent to or refuse medical treatment and (2) decide who would provide care and assistance.”
Raven served as her guardian for 20 months. Based on her historical and ongoing refusal to nursing home placement, Raven attempted to have her cared for at home. Ida's refusal to cooperate with care along with doctor who quit and care agencies that lack staff to provide sufficient hours of care or who were unwilling to cooperate with orders for more regular turning lead to a further decline in health. In the Winter storm of 2006, Ida was left unattended and declined further and died after a brief hospitalization.
After Ida's death DSHS charged Raven with neglect under the Abuse of Vulnerable Adults Act, RCW ch. 74.34.
The Court of Appeals described Raven’s duty to Ida: A court-appointed guardian owes a duty of care to her ward. RCW 11.92.043(4). Specifically, a guardian has a 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 11.92.043(4).
The court acknowledged Raven's duty "did not include guaranteeing effective care and treatment" but did include making every reasonable effort to provide the care Ida needed. Raven argued that because the law does not allow involuntary detention in a residential treatment facility and mental health evaluators had refused to find Ida qualified for involuntary commitment she had not breached any duty. The court found in "failing to aggressively pursue transitioning Ida from home care to residential care, Raven was not balancing Ida's wishes against her medical needs." The court appears to suggest that Raven's obligation was to convince Ida to go into residential care, find adequate in home care, or "step aside" and allow a more experience guardian to be appointed.
The decision made it clear that in negligence cases under the Vulnerable Adult statute it was not necessary to prove the neglect lead to the harm finding that the Act requires DSHS to prove a pattern of conduct resulting in a deprivation of care. But it plainly does not require DSHS to prove that such pattern of conduct caused Ida harm or that if Raven had offered an alternative care plan, Ida would have accepted it.. and that the standard was a mere preponderance of the evidence.
There is much about Raven's handling of the situation that is problematic. She was not making regular visits to Ida to fully assess the seriousness of the situation and try to convince Ida to reconsider residential care. She did not make efforts to find staff to fill all of the care slots funded by DSHS when the care agency had inadequate staff to work all funded shifts or replace doctors and nurses that quit or replace health care workers who refused to comply with hospice orders on care because they disagreed with them. But she also ran up against many problems that plague even the best of guardians. Guardianship does not give the guardian the power to force a ward into residential care and many wards refuse to consent even when the issue is aggressively pursued. Good in home care can be difficult to find or prohibitively expensive for wards who require round the clock care. It is not uncommon for workers, facilities, and even doctors to refuse to continue to work when resources dry up, families are difficult, and wards are uncooperative and the guardian has little control over any of those factors.
The courts response to these very real structural problems with our society's resources and systems of care for the aging is to "agree that Ida’s case presented difficult problems. . . . [which] frustrates the very purpose of her appointment as Ida’s guardian. When Raven reached the conclusion that obstacles were beyond her control, she should have stepped aside."
While every professional who works in the realm of guardianship hates to see a ward this vulnerable receive this little care or attention with this tragic result, we also need to recognize that there may be cases, even with the best of professionals, without good answers. Everyone stepping aside may simply leave no one responsible and even less care for the ward.
We regularly see cases where facilities, family, and friends seek a guardianship to try to force their loved one into residential care when they refuse. It is often our job to explain that guardianship doesn't give them that power although it may give them more tools, such as financial control, to influence the ward. With this case, we will also need to explain that if those tools don't work and a good in home plan cannot be created, they may need to step aside or face claims of negligence. In many of these case what is needed is a plan to get the ward, if possible, to agree to care and get people in place with the legal authority to implement the plan. That may not always be guardianship and may be best pursued through ADR outside the courts.
Another good take away message from the case is that guardians, when appointed, need legal representation. In this case Raven was advised by the court to seek legal representation to address the issue and declined. An attorney might have been able to assist her in petitioning for instructions from the court on how to overcome the challenges she faced, documenting her attempts to get Ida care, and ultimately helping her to resign if no solution could be found. There are many volunteer family guardians operating without legal representation with even less access to community resources and understanding of their legal rights and obligations. That may be unwise. Assuming the duties of a guardian is not a small step and I think all guardians need some assistance from an attorney. Failure to get help when needed can lead to legal liability for them and inadequate care for their ward.
If you would like to set up a consultation to discuss options for caring for a declining loved one or are a guardian needing representation to protect you and your ward, contact us at [email protected] or call us at (206) 459-1908.
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