In Re The Guardianship Of: Sandra Lamb; James R. Hardman, App/cross-res. V. Dshs, Res/cross-app.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Guardianship of
)
)
SANDRA J. LAMB,
)
)
An Incompetent Person.
)
)
)
In the Matter of the Guardianship of
)
)
REBECCA ROBINS,
)
)
An Incapacitated Person.
)
________________________________)
No. 62711-2-I
(consolidated with
No. 62613-2-I)
ORDER GRANTING MOTION
TO PUBLISH OPINION
Amicus curiae Disability Rights Washington, having filed a motion to
publish opinion, and the hearing panel having reconsidered its prior
determination and finding that the opinion will be of precedential value; now,
therefore it is hereby:
ORDERED that the unpublished opinion filed December 21, 2009, shall
be published and printed in the Washington Appellate Reports.
Done this _____ day of _________________, 2010.
FOR THE COURT:
________________________________
Judge
No. 62711-2-I (consol. with
No. 62613-2-I) / 2
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Guardianship of
)
)
SANDRA J. LAMB,
)
)
An Incompetent Person.
)
)
)
In the Matter of the Guardianship of
)
)
REBECCA ROBINS,
)
)
An Incapacitated Person.
)
________________________________)
No. 62711-2-I
(consolidated with
No. 62613-2-I)
ORDER GRANTING MOTION
TO PUBLISH OPINION
The respondent/cross-appellant, State of Washington, Department of
Social and Health Services, having filed a motion to publish opinion, and the
hearing panel having reconsidered its prior determination and finding that the
opinion will be of precedential value; now, therefore it is hereby:
ORDERED that the unpublished opinion filed December 21, 2009, shall
be published and printed in the Washington Appellate Reports.
Done this _____ day of _________________, 2010.
FOR THE COURT:
________________________________
Judge
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Guardianship of
)
)
SANDRA J. LAMB,
)
)
An Incompetent Person.
)
)
)
In the Matter of the Guardianship of
)
)
REBECCA ROBINS,
)
)
An Incapacitated Person.
)
________________________________)
No. 62711-2-I
(consolidated with
No. 62613-2-I)
DIVISION ONE
UNPUBLISHED OPINION
FILED: December 21, 2009
Leach, J. — The decision to award guardian fees lies within the discretion
of the superior court. But the court may only award fees 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 co-guardians 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
James Hardman and his mother, Alice Hardman, are certified professional
guardians.1 Approximately 23 of their wards are clients of the Department of
1
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
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Social and Health Services (DSHS) residing at Fircrest School. Fircrest is one
of five residential habilitation centers (RHCs) established by state law to serve
people with developmental disabilities. Among the Hardmans’ wards residing at
Fircrest are Sandra Lamb and Rebecca Robins.
A.
Sandra Lamb
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-ahalf- 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.
Lamb has resided at Fircrest since 1964. In 1982, she was placed in a
community group home but was returned to Fircrest due to her “fits of anger and
anti-social behavior.” In 1986, the King County Superior Court declared Lamb
an incapacitated person (IP).
recommended
environment.
against
Dr. Lee Miller, a staff physician at Fircrest,
community
placement
in
favor
of
a
structured
In 1993, Ms. Hardman was appointed as the guardian of the
family and who charges fees for carrying out the duties of court-appointed
guardian of three or more incapacitated persons.”
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person and estate of Lamb. The order states that Lamb “shall not retain her
right to vote.” Mr. Hardman was appointed co-guardian in 1997. In 2004, Lamb
and four other of the Hardmans’ wards were relocated to Rainier RHC in
Buckley, Washington.
The Hardmans filed an action under the abuse of
vulnerable adults statute, chapter 74.34 RCW, in King County Superior Court in
2006 and requested Lamb’s return to Fircrest. In 2007, Lamb was returned to
Fircrest,2 and the Hardmans obtained a financial settlement for her the next year.
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 threeyear 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 2008.3
The report states that during this
period the Hardmans worked with advocacy groups such as Friends of Fircrest,
the Fircrest Human Rights Committee, and Action for RHCs to lobby state and
2
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.”
3
The report also extensively discusses the Hardmans’ litigation efforts.
The Hardmans are not seeking compensation for the time spent on litigation in
this case.
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local officials.
Mr. Hardman also worked “within the Washington State
Disabilities Issues caucuses . . . [and] the State Democratic convention as a
delegate to advocate for the resolution of support for Fircrest and other State
RHCs.” In June 2008, the Hardmans traveled to Washington D.C. to attend the
annual Voice of the Retarded conference and lobby “every State of Washington
Congressional office.” In addition to lobbying officials, the Hardmans opposed
legislation proposed in 2007 that would have created a commission with
authority to close RHCs and championed legislative initiatives, including:
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.
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Hardmans’ hourly rate.
DSHS filed an objection to the Hardman’s 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
[m]oving medical and/or behaviorally fragile people is potentially
hazardous to their health and well-being. Closing RHCs would
necessitate such moves.
My clients are medically and/or
behaviorally fragile. Remaining where they are successful and in a
medical facility where their great needs are met is essential. This
has required great and determined effort, fostering allies, and using
groups.
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
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.
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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 co-guardian in 1998.
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.
C.
Joint Hearing and Appeal
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. Hardman’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
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specifically reporting the time spent on advocacy and specifically relating the
benefit conferred by that advocacy” on Lamb and Robins at the next accounting.
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 Hardman’s 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.
The Hardmans appealed the superior court’s orders regarding their
requests for special advocacy fees for Lamb and Robins, as well as the orders
denying their motions for reconsideration. The appeals were consolidated by
this court.
DSHS cross-appealed the portions of the orders awarding an
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allowance for the Hardmans’ community outreach activities.4
STANDARD OF REVIEW
A superior court’s award of guardian fees and costs is reviewed for an
abuse of discretion.5 An abuse of discretion occurs when the court’s decision is
manifestly unreasonable or based on untenable grounds.6 The court necessarily
abuses its discretion when its decision is based on an erroneous view of the law
or involves application of an incorrect legal analysis.7 But if pure questions of
law
4
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.
5
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)).
6
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)).
7
Dix v. ICT Group, Inc., 160 Wn.2d 826, 833, 161 P.3d 1016 (2007).
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are presented, a de novo standard of review should be applied to those
questions.8 Issues of statutory construction are also reviewed de novo.9
ANALYSIS
A.
Compensation for the Hardmans’ Advocacy Activities
The Hardmans contend that they are entitled to compensation for their
advocacy activities as the personal guardians of Lamb and Robins.10 According
to the Hardmans, the framework governing guardian compensation and
expenses requires “some nexus between the guardians’ activities and the best
interests of [the wards],” but “no actual benefit must be shown.” DSHS responds
that a direct benefit to the ward must be shown for the court to award fees.
In Washington, a guardian is entitled to “such compensation for his or
her services . . . as the court shall deem just and reasonable.”11 The court may
also award “[a]dditional compensation . . . for other administrative costs,
including services of an attorney.”12 “But [a] court may not award fees simply on
the basis of work performed. Rather, the court must determine the need for the
8
See Ang v. Martin, 154 Wn.2d 477, 481, 114 P.3d 637 (2005).
Wash. Cedar & Supply Co., Inc. 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”).
10
Under RCW 11.92.043(4), a guardian of a ward’s person is a 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.”
11
RCW 11.92.180.
12
RCW 11.92.180.
9
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work done and whether it benefited the guardianship.”13
In re Guardianship of McKean14 demonstrates this required showing of a
direct benefit. In that case, the trial court appointed guardians to protect two
minor daughters’ assets in relation to their father’s dissolution proceedings.15
The court later authorized payments of the guardians’ fees and costs, as well as
attorney fees, from the daughters’ guardianship assets.16 On appeal, the father
argued that the court abused its discretion in ordering the award of fees.17 In
upholding the award, Division Two emphasized that the guardian had shown a
direct benefit to the guardianship.
Specifically, the work performed by the
guardian had brought to light the daughters’ assets and interests, a task that had
eluded two previous guardians ad litem and the judge in the dissolution
proceedings.18
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
13
In re Guardianship of McKean, 136 Wn. App. 906, 918, 151 P.3d
223 (2007) (citation omitted).
14
136 Wn. App. 906, 151 P.3d 223 (2007).
15
McKean, 136 Wn. App. at 909-11.
16
McKean, 136 Wn. App. at 917-18.
17
McKean, 136 Wn. App. at 917-18.
18
McKean, 136 Wn. App. at 919.
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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.19 Their reports only discuss the potential benefit conferred
upon a class of IPs under the Hardmans’ care.
Accordingly, we affirm the
superior court’s decision denying an allowance for the Hardmans’ political and
lobbying activities, but on grounds that the Hardmans have not sufficiently
shown that these activities directly benefit Lamb and Robins.
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
The order
provides neither the court’s rationale for differentiating between political and
community outreach activities nor the factual basis for determining the amount of
the allowance for community outreach activities.
The Hardmans assert several alternative grounds in support of their
requests for advocacy fees. None of these has merit.
19
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.
20
Estrada v. McNulty, 98 Wn. App. 717, 723-24, 988 P.2d 492 (1999).
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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)(1) and (b)(1).21 Because these provisions
generally prohibit DSHS from imposing liens and seeking adjustments or
recoveries from an individual’s property and because the exceptions to these
statutes do not apply here, the Hardmans assert that “state statutes and
regulations imposing financial liability are inoperative to the extent they are
inconsistent.”22
“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.’”23 A conflict between state
and federal law arises where the state law “‘stands as an obstacle to the
21
The anti-lien provision contained in § 1396p(a)(1) 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 anti-recovery
provision contained in § 1396p(b)(1) 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].”
22
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.”
23
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)).
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accomplishment and execution of the full purposes and objectives of
Congress.’”24
Contrary to the Hardmans’ position, no conflict exists between state
statutes “imposing financial liability” and the Medicaid Act because federal
regulations implementing the Act require that “an agency must reduce its
payment to an institution, for services provided to an individual,” by the amount
of the individual’s income that remains after certain deductions have been made,
such as a personal needs allowance.25
These regulations apply to state
agencies and prohibit them from paying any amounts that are the responsibility
of the patient.26 Thus, under both federal and state regulations, RHC residents
are required to apply their income, minus certain allowances, to the cost of their
care. There is no conflict preemption.
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.27 There, the legislature enacted a law barring courts from issuing
injunctions in labor disputes except under limited circumstances. Noting that
24
Lankford, 451 F.3d at 510 (quoting Pac. Gas & Elec. Co., 461 U.S. at
204); see also Hankins v. Finnel, 964 F.2d 853, 861 (8th Cir.1992).
25
See 42 C.F.R. §§ 435.725, 435.733, 435.832, and 436.832.
26
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”).
27
188 Wash. 396, 63 P.2d 397 (1936).
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“[t]he writ of injunction is the principal, and the most important, process issued by
courts of equity, it being frequently spoken of as the ‘strong arm of equity,’”28 our
Supreme Court held that the statute was unconstitutional because “[t]he
legislature cannot indirectly control the action of the court by directing what
steps must be taken in the progress of a judicial inquiry, for that is a judicial
function.”29 Because a state court’s authority to award guardian fees from the
income of Medicare beneficiaries is not comparable to the court’s equitable
power to issue injunctions, Blanchard is inapposite.
Finally, the Hardmans and amicus ACLU argue that the superior court’s
orders deprive Lamb and Robins of their rights to petition the government under
the state and federal constitutions. But they fail to cite any relevant case law
establishing that a guardian may exercise political rights of an IP, such as the
right to petition, in the IP’s best interests when the IP cannot express his or her
28
29
Blanchard, 188 Wash. at 415.
Blanchard, 188 Wash. at 418.
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preferences. Instead, the cases they cite primarily involve the right to refuse lifesustaining treatment.30
B.
Attorney Fees
The Hardmans request an award of attorney fees on appeal under RAP
18.1 and RCW 11.96A.150.31 Because they have not prevailed on appeal, we
decline their request. Given the unique issues in this case, we also deny the
Hardmans’ request for fees below.32
CONCLUSION
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
30
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).
31
The commissioner approved $10,000 for litigation expenses associated
with the appeal.
32
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).
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activities, though on different grounds,33 and reverse its decision awarding a
monthly allowance of $75 for community outreach activities.
WE CONCUR:
33
Silverstreak, Inc. v. Dep’t of Labor & Indus., 159 Wn.2d 868, 876, 154
P.3d 891 (2007).
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