Frequently Asked Questions
What is the Escalation Pathway used for?
The Escalation Pathway is used by DSHS staff to submit requests for: a) document review of designated power of attorney or other legal documents or b) HQ or AAG case staffing.
What is the Escalation Pathway email address?
ALTSAAcuteHospitalGuardianshipCaseStaffing@dshs.wa.gov
What does it mean that residual capacity is “fluid”?
Capacity being fluid means that a client’s cognition is not stagnant; it can wax and wane depending on many variables including the type of question asked, timing of the question, the client’s pain levels or medical condition at the time the question is asked, the language or method used to ask the question, etc.
Why can’t family members consent on behalf of an individual for Medicaid benefits including transitional care planning and transition decisions?
The Informed Consent statue RCW 7.70.065 allows for healthcare providers to obtain consent for their patients from family members for medical care and treatment. Medicaid is not a healthcare provider and as such Medicaid must follow different statutory authorities for obtaining client consent. Specifically, Medicaid follows CFR 42, which require “client-centered care”. Medicaid law outlined in CFR 42 requires that the person-centered planning process be “driven by the individual” and “ensure that the individual directs the process to the maximum extent possible and is enabled to make informed choices and decisions.”
Can an individual consent to Medicaid services or transitional planning if their medical treatment team determines them to be non-decisional to provide informed consent?
Yes. Different statutes govern the work of medical providers and Medicaid; as such Medicaid does not follow the same Informed Consent statue found in RCW 7.70.065; rather, it defaults to CMS regulations found in CFR 42. Given the different statutes, there are different thresholds to provide consent.
Can an individual appoint an authorized representative or execute a designated power of attorney document if their doctor says they are non-decisional to provide informed consent?
Given that healthcare providers and Medicaid follow different statutes involving client consent, a client may be found non-decisional for informed consent for medical decisions purposes while still displaying residual capacity to: a) consent to Medicaid services and supports in order to self-direct their care or transition, b) execute a Designated Power of Attorney, or c) appoint an Authorized Representative.
Can a client with psychiatric or cognitive impairment consent and complete consent paperwork for themselves?
Under the Uniform Guardianship Act, an adult is presumed to have capacity unless otherwise determined by a court of law. Therefore, an adult, regardless of psychiatric condition or cognitive impairment, has the civil right to consent to or refuse care and services and to complete necessary paperwork on their own behalf, unless otherwise ordered by a court of law.
Can a person on an involuntary treatment act (ITA) hold consent to Medicaid services and transitional planning?
Under the Uniform Guardianship Act, an adult is presumed to have capacity unless otherwise determined by a court of law. While an adult may be involuntarily detained for psychiatric treatment, the adult retains their civil right to consent to or refuse care and services and to complete necessary paperwork on their own behalf, unless otherwise ordered by a court of law.
How can we help an individual who is unable to manage their finances but are still their own decision maker?
An individual can be assisted to do any of the following: 1) add a trusted person on their accounts to assist with financial management needs and to provide protective oversight, 2) set up automatic bill pay, 3) appoint an agent under a financial power of attorney, and 4) enroll with a professional payee service if they are receiving Social Security income.
Why do some people need conservators even when they have a Representative Payee?
A Representative Payee is only able to capture and redirect current and future Social Security (or other government) payments for a client. They are not authorized to marshal a client’s pre-existing funds from other financial institutions or insurance policies. In such events, a Conservator would be required to access and liquefy the client’s assets in the marshaling process.
What formats are acceptable for obtaining client consent.
Although best practice is to obtain written consent, CMS Regulations CFR 42 allows for verbal consent by clients. Verbal consents should be documented by Department staff. Additionally, under Americans with Disabilities Act (ADA), accommodations can be afforded to clients to enable the execution of “written” or “verbal” consents. When does consent for an authorized representative expire? Authorized Representative consents are typically good for 1 year, the duration of a benefit period, or until revoked by the client; whichever occurs first.
What is the duration of effectiveness for verbal consent?
Verbal consent is held to the same standards as written consent. As such, verbal consents are typically good for 1 year, the duration of a benefit period, or until revoked by the client; whichever occurs first.
What are the minimum eligibility requirements to serve as an agent under a Designated Power of Attorney (DPOA)?
The minimum eligibility requirements of an agent under a designated power of attorney are: 1) 18 years of age and 2) a person the individual executing the document has identified as their desired agent in fact to carry out their wishes.
To be executed properly, does a DPOA have to be notarized or witnessed in Washington state?
In the state of Washington, a designated power of attorney form for healthcare or finance can be notarized or witnessed by two adults not otherwise appointed authority in the document. While Washington state law does not require designated power of attorney for finances documents to be notarized, many federally regulated financial institutions (such as banks and credit unions) do require notary seal for effectiveness of the documentation for banking purposes.
How can a DPOA be notarized if the person is hospitalized at the time they are wanting to execute it?
Notary services can be provided in the hospital setting. Some hospital systems provide onsite notary services to patients, while others do not. In the event such services are not offered, mobile notary services can be arranged to meet the client at the hospital. To complete notary services, the person completing the designated power of attorney must have valid identification.
Can a person revoke a designated power of attorney (DPOA) verbally?
Each designated power of attorney document is a legal contract with varying clauses and terms individualized to the individual executing the document. Verbal revocation is allowed or disallowed based on the terms of the document as outlined in the document’s revocability clause.
When the primary and secondary agents are in disagreement, who has final authority?
When disagreements between two agents occurs, it must be determined if the agents are Primary and Secondary agents or co-agents per the terms of the executed designated power of attorney document. If it is a primary and secondary agent designation, then the final decision authority is granted to the primary agent; if it is a co-agent designation, then decisions are required per the mechanism outlined in the document (i.e. by agreement or that agents can made decisions independent of one another).
Why should an individual be encouraged to complete a designated power of attorney document when they have a current authorized representative?
Authorized Representative consents are time limited and must be renewed. This is problematic when an individual is no longer able to provide consent to complete a renewal, leaving them without a decision maker. A designated power of attorney is authorized to act when a client is no longer able to provide consent themselves. Executing a designated power of attorney is a preventative measure to future guardianship or conservatorship proceedings in the event the individual becomes unable to renew an Authorized Representative form.
Why should designated power of attorney paperwork and court orders be reviewed?
Don’t they allow the agent or appointed guardian to act on behalf of the individual? Designated power of attorney and legal court paperwork should be reviewed to determine the specific authorities granted to the agent. Designated authority is not assumed. Designated power of attorney and legal court paperwork are individualized based on the needs and scope of assistance each individual requires and are only effective per the terms and scope of the executed document.
Where can an individual find a designated power of attorney form that includes authorities for Medicaid and long-term care services and supports authorities?
Forms can be found for free on the Washington Law Help website: https://www.washingtonlawhelp.org/resource/questions-and-answers-on-powers-of-attorney.
Can agents listed on a designated power of attorney (DPOA) document transfer authority back and forth between each other?
Each designated power of attorney document is a legal contract with varying clauses and terms individualized to the individual executing the document. Transfer of authority between agents is allowed or disallowed based on the terms of the document as outlined in the document’s transferability clause.
Can an agent listed on a designated power of attorney (DPOA) document delegate their authority to another person not listed on the document?
Each designated power of attorney document is a legal contract with varying clauses and terms individualized to the individual executing the document. Delegation of authority is allowed based on the terms of the document as outlined in the document’s delegation clause when such a clause exists; otherwise, delegation of authority is disallowed.
When is a designated power of attorney in effect?
Each designated power of attorney document is a legal contract with varying clauses and terms individualized to the individual executing the document. Effectiveness is determined based on the terms of the document as outlined in the document’s effectiveness clause. Most often, documents become effective immediately or upon a triggering event such as when two medical providers write statements of the individual’s inability to make decisions. Although a designated power of attorney may be in effect, the ultimate authority for consent continues to default to the individual whenever possible.
When can a secondary agent identified in a Designated Power of Attorney be used?
Typically, a secondary agent within a designated power of attorney may be defaulted to when the primary agent is no longer able or willing to act in the capacity as primary agent. Substantiating documentation is required to default to the secondary agent. Such documentation would include notes from treatment teams outlining inability to reach the primary agent or the primary agents inactions pertaining to the welfare of the individual; a substantiated APS finding; a written statement or verbal resignation of authority received by the primary agent; notification of the primary agent’s death; etc.
If an individual has no DPOA and does not have residual capacity to execute a DPOA or to appoint an authorized representative, who can make decisions for them?
A guardian or conservator may be required when an individual has no existing 1. designated power of attorney with an identified agent or 2. an authorized representative, and the individual is unable to consent or self-direct their care in order to execute either option.
What is meant by the term “historical reference document”?
An “historical reference document” is a document used in legal proceedings to either: 1) outline an individual’s prior preferences or 2) justify the need for guardianship, conservatorship, or another protective arrangement. What are the minimum eligibility requirements to serve as a non-professional guardian or conservator? To serve as a non-professional to serve as a guardian or conservator, they must be 18 years of age, with a minimum credit score of 650, without any known criminal history involving crimes against children or vulnerable adults, and must be willing to complete an online lay-guardian training module prior to their court appointment. A non-professional cannot serve as guardian or conservator to more than 3 individuals at any one time.
What are the minimum eligibility requirements to serve as a professional guardian or conservator?
To become a professional guardian or conservator, an individual must be 21 years of age, with a minimum credit score of 700, without any known criminal history involving crimes against children or vulnerable adults, must successfully complete the 10 month guardian training program, and become certified and approved by the Washington State Has there been a change in guardianship law in Washington state and if so what generated such a change? Yes, there has been a revision in the law. Effective January 1, 2022, Washington state adopted the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (referred to as the UGA) in order to assist with standardization efforts between states as to the legal processes for appointing guardians and conservators when an individual needs assistance with decision making and informed consent.
How does one find a guardian or conservator for somebody?
A guardian or conservator of less restrictive means is always preferred whenever feasible. This means that first the court would consider a family member or friend to serve then a professional or a public guardian. A list of all certified professional guardian is available on the WA State Guardian Portal website which can be narrowed based on selected search criteria such as by county. The WA State Guardian Portal website also houses the Office of Public Guardian referral process and the statewide ListServ referral system for all certified professional guardians and conservators. https://www.courts.wa.gov/guardianportal/
What is the ListServ?
The ListServ is a statewide email referral system sent to all certified professional guardians and conservators for purposes of identifying an accepting guardian or conservator.
Who owns the ListServ?
The ListServ is overseen by the Administrative Offices of the Court (AOC) who has tasked the Office of Public Guardians (OPG) with managing it. Although it is managed by the OPG, all cases can utilize this established process for making statewide referrals for guardian and conservator searches without having to apply for the appointment of a Public Guardian through the OPG program. Is there a list of Public Guardians for clients who have no income to pay for guardianship or conservatorship fees? There is no list of Public Guardians available for public access as all referrals for Public Guardians must be done through the Office of Public Guardians (OPG). All Public Guardians are contractors with the OPG. OPG has a website which outlines the referral process and provides all necessary forms. The Washington State Guardian Portal-Office of Public Guardian link is: https://www.courts.wa.gov/guardianportal/index.cfm?fa=guardianportal.opg&cotent=request
Who can file the guardianship or conservatorship motion with the court?
Any interested party can file a guardianship or conservatorship motion with the court. An interested party could be a family member, friend, provider, facility administrator, hospital, Adult Protective Services, Child Protective Services, etc.
Does a person have to retain an attorney to file a guardianship or conservatorship motion with the court?
No. An attorney is not required to file a guardianship or conservatorship motion with the court. A person may file a motion with the court clerk office and represent themselves at the hearing, which is referred to as “pro se”. Many county clerk offices have packets available or may provide assistance in obtaining necessary forms. Most forms can be found on https://www.courts.wa.gov/forms/
When can a guardianship or conservatorship motion be filed with the court?
Whenever an individual is unable to consent to care and services or to execute a less restrictive alternative to assist with decision making needs, a guardianship or conservatorship can be filed. However, a motion cannot be filed until there is an identified guardian or conservator willing to be nominated in the petitioning paperwork.
How does somebody file for guardianship or conservatorship with the court?
A person may file a motion with the court clerk office and represent themselves at the hearing, which is referred to as “pro se”. Many county clerk offices have packets available or may provide assistance in obtaining necessary forms. Most forms can be found on the Washington Court website: https://www.courts.wa.gov/forms/
Are there discounts for filing fees and court costs available for Medicaid clients subject to guardianship or conservatorship?
Yes. At the time of filing, the petitioner should notify the county clerk that the individual is a Medicaid recipient and request a fee waiver. Waiver approval are subject to jurisdiction requirements. Is there a formal complaint process for guardians or conservators? A formal complaint process for professional guardians and conservators may be filed online with the Certified Professional Guardianship & Conservatorship Board (CPGCB). The online filing system is located at: https://www.courts.wa.gov/guardianportal/index.cfm?fa=guardianportal.board#
Is there a process for obtaining a replacement guardian or replacement conservator?
Yes, there is a process for obtaining a replacement guardian or conservator. This is referred to as a “successor guardian” or a “successor conservator”. Just as an original motion must be filed with the court, a motion must be filed to appoint a successor. Many county clerk offices have packets available or may provide assistance in obtaining necessary forms. Most forms can be found on the Washington Court website: https://www.courts.wa.gov/forms/
Can a person be removed from guardianship or conservatorship once one is appointed for them by the court?
Yes, a person may be released from a guardianship or conservatorship motion after one has been entered by the court. This can happen for a variety of reasons such as a client recovering from a medical condition that temporarily rendered them unable to make decisions (i.e. awoke from a coma), they were able to execute a designated power or attorney negating the need for a continued guardianship, or they were able to establish a representative payee or trust account negating the need for a continued conservatorship. Under statue, the guardian and conservator must report to the court any change in condition and any appropriateness for dismissal or modification of the guardianship or conservatorship order at least every reporting period or as needed.
What are the decision making standards of practice that certified professional guardians and conservators are required to follow?
By statute, a guardian must use a “substituted judgment” decision-making model whenever the client’s preferences and wishes about a decision are known (including historically documented preferences on the issue at hand) and may only use a “best interest judgment” decision making model when the client’s preferences and wishes are unknown for the given decision.
Can a guardian tell healthcare providers which medications to give or not give to their client?
Depending on the authorities and scope of the guardianship granted, the guardian may have the authority to approve or disapprove of any treatment option, including the use of medications, with the exception of certain psychotropic medications.
Is there a way to look up if a person has a guardian or conservator appointed to them by the court?
Yes. Guardianship and Conservatorship cases are public records which can be accessed on various legal search engines. The primary legal search database can be accessed using the Washington Court Case Search website located at:
https://dw.courts.wa.gov/index.cfm?fa=home.home
Staff may also request case research assistance by submitting a referral through the Escalation Pathway process.
During the guardian or conservator legal process, can a person still consent to a transition setting or services if they are deemed to have capacity to do so?
Yes. This is because during a guardianship proceeding, capacity is presumed until ruled otherwise by the court. During such time a person subject to guardianship or conservatorship is only "allegedly incapacitated" and as such has the right to continue decision making for themselves. In the event a client expresses their willingness and desire for discharge and the DSHS staff has met with the client and determined the client has residual capacity to express their preferences in order to provide consent, a client is able to legally consent to and participate in their own self-directed care during the course of a guardianship/conservatorship proceeding.
What if a guardian consents to a certain residential setting option for an individual but the individual does not agree and refuses to go to the identified setting; can the individual be forced to go?
The guardian is legally required to make decisions as the client would have done for themselves when they were able to do so. This is called the “substituted judgment” decision-making model. Under the statutes , a guardian is only able to utilize the “best interest” decision-making model, when a client’s preferences and wishes on a decision are not known. If the client’s preferences are known and a disagreement between the client and guardian develops, the guardian would need to petition the court for final instruction. The court is the "super guardian" over the case and over the well-being of the client subject to guardianship and/or conservatorship. A client can be granted an attorney to represent their interest and perspective on the matter at which time both the client and the guardian would have an opportunity to plead their case before the court and using the testimony and presented evidence, the court enters a final ruling. Until such time, a guardian cannot force a transition setting or treatment against the will of the client unless there is a court order through an involuntary treatment act (ITA) motion allowing them to do so.
Will staff working in other HCS settings besides the hospital be able to utilize the HCS Guardianship Pilot Project?
The HCS Guardianship Pilot Project is available to clients in Acute Care Hospitals only at this time. While the HCS Guardianship Pilot Project is acute care hospital specific, the ALTSA Escalation Pathway process is available to all HCS staff.
Does DSHS HCS petition for all cases under the HCS Guardianship Pilot Project?
No, under the HCS Guardianship Pilot Project, the expectation is that the acute care hospital remains the petitioning party through assistance from their legal counsel. On exception, HCS can serve as the petitioning party for cases accepted into the HCS Guardianship Pilot Project. When an exception for HCS petitioner status is granted, filings are completed by the Office of the Attorney General (OAG).
Does the HCS Guardianship Pilot Project provide a “fast track” to the appointment of a guardian or conservator?
No, the HCS Guardianship Pilot Project does not provide a “fast track” option for guardianship or conservatorship establishment. The purpose of the HCS Guardianship Pilot Project is to work in collaboration with acute care hospitals to identify a guardian or conservator willing to accept nomination for purposes of establishing a decision-maker for Medicaid clients requiring assistance for transition when all other efforts to identify a guardian or conservator have been exhausted. The HCS Guardianship Pilot Process does not have a mechanism for expediting the judicial process.
Why are hospitals required to complete the ListServ process before referring to the HCS Guardianship Pilot Project?
Hospitals are required to complete the ListServ process prior to referring a case to the HCS Guardianship Pilot Project because the HCS Guardianship Pilot Project is an option of last resort to be utilized when all other identification methods have been exhausted. Completion of the pre-existing ListServ referral process ensures that all certified professional guardians and conservators have been provided the opportunity to accept nomination of a case prior to utilization of the limited resources available under the HCS Guardianship Pilot Project.
Does a client qualify for the HCS Guardianship Pilot Project if they are on DDA services?
No, the HCS Guardianship Pilot Project only accepts cases where the client is served through Home and Community Services long-term care services and supports (HCS LTSS).