Interpreting the impact of 2024 Washington State Guardianship & Conservatorship Legislation on Washington Hospitals

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Washington hospitals facing the ongoing issue of dealing with “complex discharge” patients may have an even more fraught pathway forward following the 2024 Washington State Legislative Session. The passage of one bill (2SSB 5825[1]) and the failure to pass another (SB 5665[2]) may complicate the options hospitals have in meeting the needs of complex discharge patients who need a court-appointed guardian to help them transition out of the hospital.

Often times, these individuals have medical conditions such as dementia that impair their decision-making capacity, and they do not have a durable power of attorney in place authorizing someone to manage their affairs. As a result, a court-involved guardianship and conservatorship are necessary to provide substitute decision-making for these individuals. A conservatorship can be established for the protection and management of an individual’s finances. A guardianship can be established for the protection of an individual’s personal affairs, such as medical decisions and residential placement.

While the tools of guardianship and conservatorship exist to resolve these substitute decision-making issues, the process is time-intensive and the guardian/conservator role can present unique challenges. Thus there are a significant number of complex discharge patients who lack a willing individual who is able to take on the role. As a result, Washington hospitals are stuck with patients taking up needed beds who cannot be discharged, leaving the hospitals with no choice but to file petitions for guardianship and conservatorship.

When patients who are medically ready for discharge to a post-acute care or community setting remain admitted longer than they need to be, it causes unnecessary strain on the patient and the hospital. At some hospitals, people who are ready to discharge but need guardianship services to do so wait an average of 124 days to receive those services and discharge.[3]

SB 5825 was signed by the Governor on March 26, 2024 and takes effect on June 6, 2024. It amends Washington’s Uniform Guardianship Act to require the court to dismiss a guardianship and/or conservatorship petition if the petitioner fails to identify a guardian or conservator within 30 days of filing. This pressure forces the nomination of a suitable substitute decision-maker to be rushed and conducted with less due diligence.  At the same time, the patients continue to be stuck in a limbo of not needing the care of a hospital, while the hospitals have no alternative for discharge during the lengthy pendency of a guardianship proceeding.

In contrast, SB 5665 is a bill which would allow hospitals to discharge and transition these patients into long-term care services during the pendency of a guardianship process. This bill has been introduced in at least the last two legislative sessions, but has unfortunately failed to get the traction necessary for passage into law.

While the legislature has attempted to pilot a program for hospitals to request DSHS assistance with filing the guardianship/conservatorship petition to help patients that qualify for Medicaid and meet certain criteria, the program established in 2022 only serves a maximum of 60 people at a time.[4] Thus Washington hospitals continue to carry the burden of petitioning and obtaining the appointment of a qualified guardian/conservator themselves by hiring outside counsel.

The recent policy change may provide some relief by expanding the capacity of the Office of Public Guardianship (OPG) and streamlining the process for hospital patients who need a guardian to help transition to a more appropriate care setting. The OPG offers public guardianship services to low-income adults in need of a guardian when other suitable services are not accessible. OPG contracts with public and private individuals and entities to deliver guardianship services, but its resources have been limited by its lack of funding to fully address the scope of the issue.

Under the new law, OPG must contract with entities to provide decision making services for eligible adults in a hospital setting who are ready to discharge and do not have a qualified person willing to serve as their guardian. To be eligible, the person must be eligible to receive long-term care services through the Washington State Dept. of Social and Health Services, or their income must be less than 400 percent of the federal poverty level.  The legislative intent is to ease the burden for these individuals to access guardianship services and other types of decision-making support, thereby reducing the number of days spent in the hospital.[5]

While this policy change is one positive step in the right direction towards meeting the needs of these complex discharge patients, it does not fully resolve the burdensome service gap that falls upon Washington hospitals to manage. Helsell Fetterman LLP is a full-service law firm that has decades of experience in assisting hospitals in navigating guardianship/conservatorship petitions, locating suitable professional guardian/conservator candidates, and assisting individuals and families through the guardianship/conservatorship process.






About the Authors

Jenica Cassidy

Jenica focuses her practice on estate planning, guardianship, trust and estate litigation, and probate administration.  She helps individuals and their families plan for the future and resolve legal issues relating to aging.

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Kevin Khong

Kevin is a Partner with the firm who practices in the trust and estate litigation practice group and who also specializes in civil appeals for a number of different legal practice areas.

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