DRW argues at WA Supreme Court in guardianship case

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Wednesday, July 13, 2011

This is a horizontal view of gold justice scales

Are court-appointed guardians of incapacitated persons entitled to compensation from individual wards’ assets?

In 2008, James and Alice Hardman requested an allowance from the state of $150 per month to cover “special advocacy fees” for activities relating to their role as the legal guardians of eight wards living at the Shoreline, WA -based Fircrest School, one of the state’s five residential habilitation centers (institutions) for people with disabilities.The Washington State Department of Social and Health Services rejected the request, arguing that the activities cited by the Hardmans do not fall within the scope of a guardian’s duties nor do the activities directly benefit their wards. These activities include professional development courses, time spent drafting Friends of Fircrest newsletters, and lobbying to ensure their wards remain at the Fircrest School, as opposed to in a more community based setting, through a trip to Washington DC to attend the annual Voice of the Retarded conference and meetings with state legislators.

The Hardmans filed a lawsuit against the state to claim the fees, losing at both the superior court and appellate levels.  On June 30, the case came before the Washington State Supreme Court, where DisAbility Rights Washington and National Disability Rights Network joined together as amici (friends of the court) and argued in support of the state’s position that guardians cannot get paid for advocacy work without some factual showing that the ward wants, needs, or would directly benefit from such advocacy.

At the Supreme Court, DRW attorney Emily Cooper Pura argued that payment by the state of these special advocacy fees would violate state law because the Hardmans had failed to prove that these activities either reflect a stated or implied interest of the ward or otherwise benefit the “health, safety or finance” of the wards.

However, Cooper Pura also distanced DRW from the state’s position: that guardian’s could not be compensated for any legislative or advocacy activity.

In one exchange, Justice Debra L. Stevens asked Cooper Pura if guardian’s should hypothetically receive compensation for lobbying activities focused on keeping one person from being evicted from one institution where they live.

Cooper Pura responded yes and then detailed a three-tiered test for determining whether a guardian should receive fees for advocacy activities: does the activity 1) reflect the stated interests or needs of the ward, 2) the implied or historical interest or needs of the ward, or if neither stated or implied preference can be determined based on the individual’s diability, 3) provide a direct benefit.

The Hardman’s, with the backing of an amicus brief filed by American Civil Liberties Union of Washington, argued that in their role as guardians, they have “unfettered discretion” in assuming the constitutionally protected rights of their wards -including speech, property, and liberty – and should be able to step into each ward’s shoes as if they were the wards themselves.

DRW ultimately urged the Court to reject this argument as it puts all people with disabilities who have guardians in Washington State at risk of losing their autonomy simply because of the assumptions that their lives are empty shoes to fill.

DRW is part of the federally funded protection and advocacy system and a member of the National Disability Rights Network.