    Fl L E
    l~l   CLERKS OFFICE




                                                               Ronal,   .
                                                               Supreme Court Clark


  IN THE SUPREME COURT OF THE STATE OF WASHINGTON



RESARAVEN,

                          Petitioner,                 NO. 87483-2

                 v.
                                                      ENBANC
DEPARTMENT OF SOCIAL and HEALTH
SERVICES,
                                                               JUL 18 2013
                                                      Filed - - - - - - -
                          Respondent.



          STEPHENS, J.-The Department of Social and Health Services (DSHS)

made a finding of neglect against guardian Resa Raven based on events that took

place during Raven's guardianship of Ida, an elderly incapacitated person. 1 Raven

challenges this finding, which the Court of Appeals affirmed. Raven v. Dep 't of

Soc. & Health Servs., 167 Wn. App. 446, 273 P.3d 1017 (2012). We reverse the

Court of Appeals and hold that a guardian's good-faith determination that her ward

opposes nursing home placement cannot be the basis for a finding of neglect in

          1
        Mindful of the confidentiality provisions of RCW 74.34.095, only Ida's first
name, and the first names of her family members, is used here. In addition, Raven was
formerly known as Eileen Lemke-Maconi, and some of the testimony and exhibits
contained in the record address her as such.
Raven (Resa) v. Dep't of Soc. & Health Servs., 87483-2




light of the legislature's clear mandate against placing incapacitated persons

against their will. We further hold that substantial evidence does not support the

conclusion that Raven's conduct otherwise met the statutory definition of neglect.

Finally, although the evidence does not support a finding of neglect against Raven,

DSHS's actions were substantially justified, and we therefore deny Raven's

request for attorney fees under the equal access to justice act (EAJA), RCW

4.84.350(1 ).

                      FACTS AND PROCEDURAL HISTORY

       Ida became bedbound in 1996, at the age of 75, after a fall fractured a bone

in her knee. Ida suffered from several serious and debilitating ailments, including

muscle contractures that locked her legs in a splayed position, incontinence,

rheumatoid arthritis, dementia, and hallucinations. She experienced severe and

chronic pain. An adult protective services (APS) report in 2001 found that Ida, a

retired nurse, had a "'long history and lifestyle pattern of independence and

reliance on naturopathic and alternative medicine."' Administrative Record (AR)

at 104-05 (Review Decision and Final Order of DSHS, Finding of Fact 20)

(quoting Ex. 67, at 1). 2 After her fall, this pattern continued. Ida was resistant to

medical care and was combative, violent, hostile, and uncooperative with her

caregivers, including her husband Richard, her daughter Cheryl, and caregivers

       2
          In this opinion, the record compiled at the administrative hearing will be cited as
Administrative Record (AR). The testimony taken at the administrative hearing will be
cited as Administrative Report of Proceedings (ARP). Citations to the Clerk's Papers
refer to the record created by the Piece County Superior Court in its review of the agency
action.

                                             -2-
Raven (Resa) v. Dep't of Soc. & Health Servs., 87483-2




from Catholic Community Services (CCS). Her history between 1996 and 2004 is

rife with episodes of self-neglect, problems with her caregivers, and medical crises.

        A significant area of medical concern for Ida after becoming bedbound was

pressure sores. Pressure sores (also variously known as skin breakdowns, pressure

wounds, pressure ulcers, or bedsores) occur when a bony protrusion under an

individual's skin (for example, the tailbone) has prolonged contact with a surface.

Frequent repositioning of a bedbound individual is required. Pressure sores are

exacerbated by lack of timely personal hygiene such as infrequent cleansing after

bowel movements or urination. Left       untr~ated,   bedsores can become severe and

life-threatening.

        In 2004, at the age of 83, Ida was adjudicated incapacitated.         Raven, a

licensed mental health counselor and a certified professional guardian, was

appointed Ida's limited guardian of person in March 2004. Ida was Raven's first

ward.       As a Medicaid dependent, Ida had very little income, and Raven was

allowed fees of up to $17 5 per month for her services as a guardian. See AR at 111

(Finding of Fact 38). 3     Raven spent time after her appointment as guardian

familiarizing herself with Ida's history and medical situation. Based on her review

of Ida's history and conversations with Ida's family, Raven determined that Ida,

when competent, consistently refused to be placed in a nursing home or other long-



        3
         Although the finding of fact was that Raven could collect up to $17 5 a month in
fees, her testimony at her hearing was that DSHS authorized a monthly fee closer to $70.
ARP at 540.

                                           -3-
Raven (Res a) v. Dep 't of Soc. & Health Servs., 87 483-2




term care facility. Accordingly, Raven consented to a plan of care on Ida's behalf

that kept Ida in her home.

       When Raven assumed the guardianship, Ida's personal care continued to be

provided by CCS, which contracted with DSHS through DSHS's agent, Thurston

County Area Agency on Aging (AAA). AAA provided case management. When

Raven was appointed, Ida had no primary care physician, and Raven began

working to resolve this issue. It was difficult to find a physician for Ida given her

combative history, her lack of ambulation, and her financial resources. 4 In August

2005, Raven convened a care conference to discuss several issues, foremost of

which was the lack of a primary care physician. Shortly after the conference, Ida

was taken to an emergency room due to bedsores, leg pain, and the need for a

doctor. As part of the hospital's discharge plan, Ida was paired with a team from

Assured Home Health and Hospice (Assured), which included a physician.

       In November 2005, Assured convened a care conference to address the

reemergence of Ida's pressure sores, which Assured felt were caused in part by

CCS's caregivers not turning Ida enough.             Ida was resistant to repositioning

because it caused her pain, which in turn led to reluctance on the part of her

caregivers to turn her. All of Ida's plans of care called for repositioning every two

hours, but due to staffing shortages, this was not an attainable goal, particularly

       4
         As a result of being bedbound, Ida's muscles had atrophied to the point where
she could not sit up. In order to leave her bed to see a doctor, she had to be transported
by gurney in an ambulance. See AR at 98 (Finding of Fact 5), 108 (Finding of Fact 34);
ARP at 558. Raven testified that Medicaid would not pay for ambulance transport for a
routine visit. I d.

                                             -4-
Raven (Resa) v. Dep't of Soc. & Health Servs., 87483-2




because Ida needed two people to turn her. Assured also had concerns, shared by

Raven, that Richard, Ida's husband, was not consistently administering Ida's pain

medication, which exacerbated the difficulty staff had in repositioning Ida. Raven

decided that any remedial steps should wait until after the holidays, reasoning that

the holidays would be stressful enough for the family without additional

disruptions to Ida's care.

      At a follow-up conference in January 2006, it was agreed that CCS would

embark on a more aggressive turning program with training from Assured staff on

repositioning techniques. Following the meeting, a request for more personal care

hours was made to DSHS with the idea that this would enable a more aggressive

turning program. The request was granted in February or March 2006.

       A period of relative calm in Ida's medical status followed the January 2006

conference. During this time, in early 2006, Ida's AAA case manager discussed

with Raven the possibility of hiring independent care providers as a way of filling

gaps in CCS's care staffing.       AR at 122 (Finding of Fact 61).     Independent

providers contract directly with DSHS, and it is the responsibility of the

patient/client or her guardian to hire and supervise the independent providers, as

opposed to caregivers provided by an agency like CCS, which supervises its

employees. DSHS authorized approximately one additional hour of paid care for

two aides. The administrative law judge (ALJ) concluded it was speculative that

independent providers could have been found for the care hours CCS could not

staff, given the difficulties associated with Ida's case. The review judge adopted


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Raven (Resa) v. Dep 't of Soc. & Health Servs., 87483-2




this finding. AR at 122 (Finding of Fact 62). Additionally, Raven decided against

this option because she did not feel equipped to supervise such providers. AR at

123 (Finding of Fact 62).

       In May 2006, Ida's situation destabilized again when Assured quit as a result

of the medication management in Ida's home. Without consistent administration

of Ida's pain and anxiety medication by her husband, Assured felt Ida's behavior

became too combative for staff to manage and that staff was at risk of harm.

Assured's exit from Ida's care team also meant she lost her physician. Raven

petitioned the Thurston County Superior Court for direction on what steps to take

next, but the court's advice-to seek an out-of-home placement-ran afoul of Ida's

wishes. Raven did not pursue the court's other suggestion: to retain an attorney to

petition for an order granting Raven leave to fire CCS or to assist in compelling

Ida's caregivers (including Richard) to cooperate with her plan of care. See AR at

1544-45 (Ex. 29, at 11-12). There was some acknowledgement in the colloquy

that Raven already had the authority to replace CCS. See AR at 1546 (Ex. 29, at

13). The court also suggested Raven look into involuntary commitment; Raven did

not pursue this option for several months.

       A June 2006 care conference was convened with CCS to discuss whether the

agency could continue to meet Ida's needs. The idea of getting nurse delegation

certification for CCS workers was suggested, which would allow them, rather than

Richard, to give Ida her medication. The necessary paperwork was filed with




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Raven (Resa) v. Dep't of Soc. & Health Servs., 87483-2




DSHS for CCS workers to receive nurse delegation certification. 5 During this

period, Raven turned to a certified nurse practitioner friend to obtain a refill of

Ida's pain medication and also continued to look for a primary care physician for

Ida.

       In mid-August 2006, Raven arranged to have Ida transported to the

emergency room because Ida had no more pain medication and still had no doctor

to prescribe a refill.   On August 31, Raven was able· to get Ida an October

appointment with a doctor at Sea-Mar Clinic. As a result of the appointment, Ida

was assigned a new hospice team from Providence Home Care/Hospice

(Providence).

       At the time Providence joined Ida's care team, Ida had no bedsores even

though during this time she did not have all of her care hours filled. See AR at

128. But by November 15, 2006, Ida's condition had deteriorated and she had

several very serious bedsores. !d.       Between November 15 and December 14,

Raven had several calls with Providence's medical social worker, Linda

Monterastelli, about Ida's bedsores, though Raven did not go to see Ida. Raven

told Monterastelli that she would support Ida being taken to the hospital if that was

Monterastelli's recommendation. AR at 130. During these conversations in late

       5
         Unfortunately, the paperwork was lost by one of the agencies dealing with it and
nurse delegation was delayed. It was not quite in place when Ida went to the
rehabilitation center where she died, so this record is silent on whether it would have
made a difference in Ida's care. The ALJ and review judge made no express findings
about the impact of nurse delegation one way or another, and the review judge based no
conclusions of law regarding his finding of neglect against Raven on the basis that she
failed to diligently pursue nurse delegation.

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Raven (Resa) v. Dep't of Soc. & Health Servs., 87483-2




November 2006, Monterastelli shared her opinion that Ida needed 24-hour nursing

home care. AR at 129. Raven did not disagree but explained that she did not

believe she could authorize such a placement against Ida's wishes. Id. Raven

suggested to Monterastelli that they attempt to have Ida involuntarily committed

through a designated mental health provider (DMHP). AR at 129 (Finding of Fact

77).   Monterastelli made an immediate referral to a DMHP, but the DMHP

concluded Ida did not fit the criteria for involuntary commitment. !d.

       On December 14, 2006, a severe winter storm hit Thurston County. Both

Raven and Ida's homes were without power-Raven's for several days until

December 21 and Ida's intermittently between December 15 and 17. Raven was

unable to call out on a telephone or leave her house for several days. During the

power outages, Ida's condition took a turn for the worse when her special mattress

deflated, leaving her susceptible to worsened pressure sores. Due to Ida's rapid

deterioration following the power outages, at some point just after the storm

Monterastelli contacted APS to see if it could arrange 24-hour care for Ida. A

referral was made to APS investigator Glenda Specht. On or around December 29,

Specht made contact with Ida and determined her condition warranted emergency

care. With Raven's consent, on December 30 Ida was admitted to the hospital.

CCS gave notice it was terminating its services, and Raven consented to have Ida

transferred to a temporary rehabilitation treatment center on January 8, 2007.

Although she stabilized at the treatment center, Ida died on April 24, 2007.




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Raven (Resa) v. Dep 't ofSoc. & Health Servs., 87483-2




      DSHS made a founded finding of neglect against Raven, alleging a pattern

of conduct or inaction that constituted neglect and also alleging that Raven's

conduct with regard to Ida during the December 2006 storm constituted neglect. 6

After a five-day hearing, an ALJ reversed the finding.           A DSHS review judge

reinstated the finding as to the pattern of neglect but concluded that Raven's

actions during the winter storm, involving circumstances outside of Raven's

control, did not constitute neglect. AR at 169. This determination has not been

challenged by DSHS, and thus Raven's actions between December 14 and 21,

2006, are not at issue. 7        Pierce County Superior Court Judge Kitty-Ann

van Doorninck reversed the finding of neglect based on a pattern of conduct.

Division Two of the Court of Appeals reversed the superior court and reinstated

the neglect finding. A petition for review from Raven followed, which we granted.

                                       ANALYSIS

       This case reqmres the court to review DSHS 's substantiated finding of

neglect against Raven, as affirmed by an order of its review judge. DSHS is tasked

with investigating allegations of neglect against vulnerable adults, which includes



       6
         A founded finding is a determination made by agency staff. DSHS also alleged
that Raven's failure to transport Ida to the hospital following an August 2006
conversation with an AAA consulting nurse was neglect. The review judge disagreed,
and that original finding is not at issue. AR at 169.
       7
         The parties discuss the winter storm at length in their briefing. Likewise, several
findings of fact in DSHS's decision are devoted to it. To be clear, the time period
encompassing the storm is noteworthy only in that Ida took a turn for the worse to such a
degree that she ended up in the rehabilitation center where she died. In light of the
unchallenged findings, these events are not germane to the question of whether Raven
was neglectful.

                                            -9-
Raven (Res a) v. Dep 't of Soc. & Health Servs., 87 483-2




persons ordered incapacitated by the courts and elderly persons who are unable to

care for themselves. RCW 74.34.020(17). "Neglect" is

       (a) a pattern of conduct or inaction by a person or entity with a duty of care
       that fails to provide the goods and services that maintain physical or mental
       health of a vulnerable adult, or that fails to avoid or prevent physical or
       mental harm or pain to a vulnerable adult; or (b) an act or omission that
       demonstrates a serious disregard of consequences of such a magnitude as to
       constitute a clear and present danger to the vulnerable adult's health,
       welfare, or safety, including but not limited to conduct prohibited under
       RCW 9A.42.100.

RCW 74.34.020(12). Here, the DSHS review judge affirmed the finding of neglect

on the grounds that Raven's conduct met the criteria under both prongs of

subsection (a): a pattern of conduct or inaction that (1) failed to provide the goods

and services that maintain physical or mental health of a vulnerable adult or that

(2) failed to avoid or prevent physical or mental harm or pain to a vulnerable adult.

       The Administrative Procedure Act (APA), chapter 34.05 RCW, guides an

appellate court's review of an agency order. An agency order may be invalidated

only if one of the circumstances contemplated in RCW 34.05.570(3) is present. 8
              8
                 These criteria are
              (a) The order, or the statute or rule on which the order is based, is in
       violation of constitutional provisions on its face or as applied;
              (b) The order is outside the statutory authority or jurisdiction of the
       agency conferred by any provision of law;
              (c) The agency has engaged in unlawful procedure or decision-
       making process, or has failed to follow a prescribed procedure;
              (d) The agency has erroneously interpreted or applied the law;
              (e) The order is not supported by evidence that is substantial when
       viewed in light of the whole record before the court, which includes the
       agency record for judicial review, supplemented by any additional evidence
       received by the court under this chapter;
               (f) The agency has not decided all issues requiring resolution by
       the agency;
               (g) A motion for disqualification under RCW 34.05.425 or
       34.12.050 was made and was improperly denied or, if no motion was made,

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Raven (Resa) v. Dep't of Soc. & Health Servs., 87483-2




The party asserting the invalidity carries the burden to show the invalidity. RCW

34.05.570(1)(a). The appellate court reviews de novo an agency's conclusions of

law and its application of the law to the facts. Tapper v. Emp 't Sec. Dep 't, 122

Wn.2d 397, 402, 858 P.2d 494 (1993). Findings of fact are reviewed under the

substantial evidence test and will be upheld if supported by '""a sufficient quantity

of evidence to persuade a fair-minded person of [the order's] truth or

correctness.""' Port of Seattle v. Pollution Control Hr 'gs Bd., 151 Wn.2d 568,

588, 90 P.3d 659 (2004) (quoting King County v. Cent. Puget Sound Growth

Mgmt. Hr'gs Bd., 142 Wn.2d 543, 553, 14 P.3d 133 (2000) (quoting Callecod v.

Wash. State Patrol, 84 Wn. App. 663, 673, 929 P.2d 510 (1997))). With these

general standards of review in mind, we turn to the first issue presented by Raven.

A.   A guardian's good-faith decision not to place an incapacitated person in a
     nursing home against the incapacitated person's wishes cannot be the basis for
     a finding of neglect

       One of the difficulties of this case from the perspective of Ida's care team is

that Ida often required more care than could be delivered in a home setting. But in

matters of consent, though a ward may choose a course of action that would strike

many as unreasonable, if the guardian can determine that the ward would choose

such an action if competent, the guardian is bound to advocate for that position.

       facts are shown to support the grant of such a motion that were not known
       and were not reasonably discoverable by the challenging party at the
       appropriate time for making such a motion;
               (h) The order is inconsistent with a rule of the agency unless the
       agency explains the inconsistency by stating facts and reasons to
       demonstrate a rational basis for inconsistency; or
               (i) The order is arbitrary or capricious.
RCW 34.05.570(3).

                                          -11-
Raven (Resa) v. Dep't of Soc. & Health Servs., 87483-2




, After investigating the issue of Ida's residential placement preferences, Raven

 determined that when competent, Ida consistently refused to be placed in a nursing

 home or other long term care facility. AR at 108 (Finding of Fact 32). DSHS

 found that Raven's determination that Ida would not choose out-of-home care was
 made in good faith. Id.

       Substitute decision-making on behalf of incompetent individuals poses

 particular difficulties. In In re Guardianship of Ingram, 102 Wn.2d 827, 829-31,

 689 P.2d 1363 (1984), a guardian sought a court order forcing a ward to submit to

 a laryngectomy for cancer treatment when the ward's preference was for radiation.

 Although the laryngectomy was far more likely than radiation to be successful at

 putting the ward's cancer into remission, it would also most likely result in the

 ward losing her vocal cords. This court acknowledged that the issue was one of

 first impression: the proper procedure for determining whether an incompetent

 person must submit to a life prolonging or curative treatment. Id. at 83 5. It sought

 to provide the decision-maker-the court faced with the petition-with the factors

 it should consider. Id. at 836-38.

       In doing so, the court reiterated that the "goal is to do what the ward would

 do, if she were competent to make the decision." Id. at 838. "The goal is not to do

 what most people would do, or what the court believes is the wise thing to do, but

 rather what this particular individual would do if she were competent and

 understood all the circumstances, including her present and future competency."

 Id. at 839. In other words, courts cannot apply a "reasonable person" test, but must


                                          -12-
Raven (Resa) v. Dep't of Soc. & Health Servs., 87483-2




apply a subjective test based on the ward's "attitudes, biases, and preferences." ld.

at 844.

      RCW 7.70.065(1)(c) speaks directly to a guardian's duties. It requires that
      [b]efore any person authorized to provide informed consent on behalf of a
      patient not competent to consent under RCW 11.88.010(l)(e), other than a
      person determined to be incapacitated because he or she is under the age of
      majority and who is not otherwise authorized to provide informed consent,
      exercises that authority, the person must first determine in good faith that
      that patient, if competent, would consent to the proposed health care. If
      such a determination cannot be made, the decision to consent to the
      proposed health care may be made only after determining that the proposed
      health care is in the patient's best interests.

(Emphasis added.) In addition, RCW 11.92.190 speaks to placing an incapacitated

person in institutional care. It mandates that

       [n]o residential treatment facility which provides nursing or other care may
       detain a person within such facility against their will. Any court order, other
       than an order issued in accordance with the involuntary treatment
       provisions of chapters 10.77, 71.05, and 72.23 RCW, which purports to
       authorize such involuntary detention or purports to authorize a guardian or
       limited guardian to consent to such involuntary detention on behalf of an
       incapacitated person shall be void and of no force or effect.

In light ofRCW 7.70.065(1)(c), RCW 11.92.190, and Ida's preferences expressed

when competent, Raven determined that she could not pursue an out-of-home

placement for Ida.

          The Court of Appeals, however, concluded that the neglect finding was

appropriate because Raven declined to pursue placement in a residential setting.

"In failing to aggressively pursue transitioning Ida from home care to residential

care, Raven was not balancing Ida's wishes against her medical needs; rather, she

was allowing Ida's historical opposition to residential care to override her critical



                                            -13-
Raven (Resa) v. Dep 't of Soc. & Health Servs., 87483-2




medical needs."     Raven, 167 Wn. App. at 467. The Court of Appeals further

explained its view:

       This failure to balance Ida's needs against her stated desires is particularly
       egregious when Raven knew or should have known that Ida's rejection of
       medical care in 2004 was based on Ida's delusions that the caregivers were
       "imposters," that her husband had fled to California, that the emergency
       room doctor was not a doctor, and that St. Peter's hospital was not St.
       Peter's hospital. Giving weight to Ida's principled decisions about the kind
       of care she would want if competent does not include allowing her
       delusions to control the care she actually needed. This is not a situation
       where the guardian had to choose between a treatment with a high chance
       of success that would cause permanent disability or a treatment with lower
       odds of success without the disability. See In re Guardianship of Ingram,
       102 Wash.2d 827, 829, 689 P.2d 1363 (1984). Rather, the decision here
       was whether to continue with the failing home care program or more
       aggressively pursue the alternative institutional care Ida needed.

!d. Raven urges this court to disapprove of the Court of Appeals decision to the

extent it suggests that guardians must institutionalize their wards or risk neglect

findings.

       We agree with Raven. The Court of Appeals' reasoning is in tension with

the guidance provided under Ingram and RCW 7.70.065. While evidence indicates

that Ida had some delusions about institutional care settings, DSHS found that

Raven in good faith determined that Ida, when competent, had consistently rejected

traditional medical methods and had always expressed a preference to die at home

with minimal medical intervention. A reviewing court cannot second guess this

unchallenged finding of fact.

       The Court of Appeals' opinion suggests that Raven "should have continued

to test the strength of Ida's opposition [to a nursing home placement] when it

became obvious that in-home care could not cope" with her medical needs. Raven,


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Raven (Resa) v. Dep 't of Soc. & Health Servs., 87483-2




167 Wn. App. at 458. DSHS takes up this thread, arguing that nothing in the

record indicates Raven based her belief that Ida opposed a permanent nursing

home placement on anything other than Ida's historic opposition to such an

arrangement. Suppl. Br. ofResp't at 16. But as noted, RCW 7.70.065's substitute

judgment provision requires the guardian to determine what the ward would want

if competent. If that determination cannot be made, then the guardian may act in

the ward's best interests, which here likely favored placement in a nursing home.

       Because it is established that Raven made a good-faith determination about

what Ida wanted if competent, it matters little whether Raven based her

determination on historic or contemporaneous facts (or both). The finding is that

Ida did not want to be placed in long-term care. DSHS insists that Raven should

have asked Ida at certain points-when her pressure sores were at their worst, for

example-whether she had reconsidered her opposition to a nursing home. Suppl.

Br. of Resp't at 16. Ida's continued hostility and violence toward her caregivers,

as demonstrated in this record, belies the suggestion she would have been willing

to accept a permanent nursing home placement if only Raven had asked her about

it. Indeed, the review judge concluded that it was speculative and not supported by

substantial evidence to assume that Ida would have eventually agreed to placement

if Raven had spent more time building rapport with Ida. AR at 149. 9 As the

Ingram court stated, it does not matter whether the ward's choice might not be

       9
         DSHS also argues that Raven was remiss in not asking Ida whether she would
agree to a temporary placement. This is a separate issue from a permanent nursing home
placement and is addressed in the section below.

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Raven (Resa) v. Dep't of Soc. & Health Servs., 87483-2




what most people would do or find prudent.          To the extent that the Court of

Appeals' discussion is at odds with Ingram and RCW 7.70.065, we reject it.

      Moreover, even if Raven had chosen to disregard her good-faith

determination of Ida's judgment in this matter, Raven could not have placed Ida in

a nursing home. RCW 11.92.190 prevents any person, whether competent or not,

from being placed against their will in a residential treatment facility unless they

have been involuntary committed under chapters 10.77, 71.05, and 72.23 RCW.

As noted, Raven pursued a possible involuntary commitment in late 2006, but the

designated mental health professional who assessed Ida determined she did not fit

the criteria for involuntary commitment.

       In sum, DSHS made a finding of fact that Raven determined in good faith

that a permanent nursing home placement was against Ida's wishes, and nothing in

the record suggests that Ida had changed her mind.             Raven therefore acted

consistently with both RCW 7.70.065 and RCW 11.92.190 by not pursuing such an

arrangement. To the extent that the Court of Appeals affirmed the neglect finding

based on Raven's decision not to pursue out-of-home placement, this was in error.

In light ofRCW 7.70.065 and RCW 11.92.190, Raven's good-faith determination

that an out-of-home placement is contrary to Ida's wishes cannot serve as the basis

for a finding of neglect. 10

       10
           We also note that a finding of neglect against a guardian is not DSHS's only
avenue of recourse. The Certified Professional Guardian Board also monitors the
activities of guardians and can initiate disciplinary proceedings against those who fall
short of the certified professional guardian standards. DSHS may also seek a protective
order against a guardian under RCW 74.34.110.

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Raven (Resa) v. Dep't of Soc. & Health Servs., 87483-2



B.   Substantial evidence does not support the finding that Raven's conduct
     constituted neglect

      The DSHS review judge concluded that once Raven committed to in-home

care for Ida, Raven had a duty to ensure Ida's needs were met in the home. AR at

162. The review judge's conclusion that Raven failed to do so constituted the

grounds upon which he rested his order affirming the finding of neglect. AR at

168 (Conclusion ofLaw 56).

       Specifically, he found that Raven failed to: educate herself on and regularly

explore residential alternatives; educate herself on Ida's medical conditions and

needs (specifically, her need for repositioning); make an adequate number of

meaningful, in-person visits to Ida's home; and pursue independent providers as a

care solution or, alternatively, step aside as guardian if supervising independent

providers were beyond the scope of Raven's abilities.       AR at 163-68.     These

failings, concluded the review judge, resulted in Ida's inadequate pain

management, inadequate repositioning, and inadequate personal bath care for

several months. !d. at 168. The review judge concluded that Raven's "failure to

ensure these critical care needs were met did constitute a pattern of conduct or

inaction that failed to provide the services to maintain Ida's physical health and

failed to avoid and prevent physical harm to her." !d. (Conclusion of Law 56).

       In response, Raven argues that her efforts were frustrated by factors beyond

her control, most notably the dearth of qualified care providers able to fulfill the

care hours authorized by DSHS and Ida's own combativeness and resistance to

care. Having concluded that Raven's decision not to pursue an out-of-home


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Raven (Resa) v. Dep't of Soc. & Health Servs., 87483-2




placement for Ida does not support a finding of neglect, we must decide whether

substantial evidence supports the conclusion that Raven's other conduct rose to the

level of neglect.

      We begin by rev1ewmg a guardian's fiduciary duty to her ward.                     A

guardianship is "'a trust relation of the most sacred character."'                  In re

Guardianship of Eisenberg, 43 Wn. App. 761, 766, 719 P.2d 187 (1986) (quoting

39 AM. JUR. 2D Guardian and Ward§ 1 (1968)). A guardian owes a fiduciary duty

to her ward. Id.; Cummings v. Guardianship Servs. of Seattle, 128 Wn. App. 742,

755, 110 P.3d 796 (2005). A fiduciary duty means that "one party 'occupies such

a relation to the other party as to justify the latter in expecting that his interests will

be cared for."'     Liebergesell v. Evans, 93 Wn.2d 881, 889-90, 613 P.2d 1170

(1980) (quoting RESTATEMENT OF CONTRACTS§ 472(1)(c) (1932)).

       The enumerated duties of a guardian are set forth in RCW 11.92.040 and

RCW 11.92.043. A guardian must, "[ c]onsistent with the powers granted by the

court, . . . 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] assert the incapacitated person's

rights and best interests."      RCW 11.92.043(4).        In addition to this statutory

mandate, a certified professional guardian's conduct is governed by the Standards

of Practice Regulations for certified professional guardians (CPG Standards).

       Just as the review judge, we evaluate the claim of neglect against the

backdrop of the CPG Standards. With these standards in mind, we consider first


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Raven (Resa) v. Dep't of Soc. & Health Servs., 87483-2




whether the review judge correctly concluded that Raven failed to meet her

professional standards and then whether those shortcomings amounted to neglect.

While it is a close question, we conclude the finding of neglect is unsupportable.

       1. Raven's Conduct as a Guardian

       Under CPG standard 404.5, "[t]he guardian shall, to the extent possible,

select residential placements which enhance the quality of life of the incapacitated

person, provide the opportunity to maximize the independence of the incapacitated

person, and provide for physical comfort and safety." AR at 1836 (Ex. 38 at 4). 11

Under CPG standard 404.7, "[t]he guardian shall, as necessary, thoroughly

research and evaluate the incapacitated person's residential alternatives." Id. The

review judge concluded Raven did not abide by these standards:              Ida received

substandard care for many of the months when Raven was her guardian, and Raven

shared a lack of knowledge about residential alternatives that may have been

legally permissible, such as general inpatient admission to a hospital or a

rehabilitation treatment center. AR at 163-64 (Conclusion of Law 48).

       CPG standard 405, et al., requires the guardian to provide informed consent

for medical care on behalf of the ward. AR at 1836 (Ex. 38, at 4). The review

judge reasoned that informed consent means Raven had a duty to be

knowledgeable about Ida's medical conditions. AR at 164 (Conclusion of Law

49).   He concluded that she failed in this duty as evinced by her testimony

       11
          We cite to the administrative record for the text of the standards because since
the time of the hearing, the standards have been renumbered. The parties' briefing cites
to the standards as they were numbered at the time of the hearing.

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Raven (Resa) v. Dep 't of Soc. & Health Servs., 87483-2




demonstrating that she had only a vague understanding of Ida's need for

repositioning to avoid bedsores, and of bedsores in general, and did not know how

often Ida was being repositioned.       !d.   The review judge noted that Raven's

minimal visits with Ida contributed to her lack of understanding regarding Ida's

medical needs.

      Under CPG standard 401.15, the guardian must have meaningful, in-person

contact with her client as needed, including observing the incapacitated person's

circumstances and interactions with care providers. AR at 1834 (Ex. 38, at 2). The

review judge opined that Raven fell far short of this standard, finding that Raven

visited Ida only five times in 2006, and only twice that year in Ida's home. AR at

112-13 (Finding of Fact 44). The review judge concluded that because Raven

"insulated herself from Ida's quickly deteriorating condition by failing to

personally observe the situation in late 2006, the necessary care decisions were not

made." AR at 167 (Conclusion of Law 53).

       CPG standard 401.6 requires the guardian to "know and acknowledge

personal limits of knowledge and expertise" and to "assure that qualified persons

provide services to the incapacitated person." AR at 1833 (Ex. 38, at 1). Raven

failed in this duty, the review judge concluded, when she chose not to pursue

independent providers because she was not experienced in supervising such staff.

Alternatively, the review judge opined that Raven had a duty under CPG standard

407.2 to terminate her guardianship when it became clear she could not procure a

primary care physician or find enough staff to carry out Ida's care plan.


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Raven (Resa) v. Dep 't of Soc. & Health Servs., 87483-2




      Turning now to whether the review judge correctly determined that Raven

fell short of these standards, we first consider the review judge's general

proposition that having chosen in-home care for Ida, Raven had a duty to ensure

Ida received the goods and services she needed. The review judge did not identify

any law or standard that required Raven to ensure or guarantee that Ida accepted

the care Raven could arrange for Ida in Ida's home. Raven was required to care for

and maintain Ida in the setting least restrictive to Ida's freedom and appropriate to

her personal care needs and to assert Ida's rights and best interests.         RCW

11.92.043(4). As found by DSHS, Ida's preference if competent was to remain at

home to die. This arrangement was least restrictive to Ida's freedom and asserted

her rights.

       There was nothing inherently inappropriate about this arrangement with
                                                                           .,


regard to Ida's personal care needs; had Ida been cooperative with the

repositioning program, nothing in the record suggests she would have developed

the serious bedsores she did. Indeed, the record reflects periods of time when Ida

did not suffer from sores, suggesting periods when the care arrangement was

"working" even without the additional aide hours being filled and without

repositioning every two hours. For example, the findings of fact, which give a

detailed account of Ida's battle with pressure sores, make no mention of sores after

January 2006 until November 2006. The record also does not suggest that Raven's

decisions to stay the course with the care plan were not made in good faith or were

not made with Ida's best interests in mind. For example, Raven determined that


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Raven (Resa) v. Dep 't of Soc. & Health Servs., 87483-2




Ida had a good relationship with one of CCS 's pnmary caregivers, Pam

Hernandez, and that it was in Ida's best interests to make the care plan work with

CCS as the staffing agency. AR at 132-33 (Finding of Fact 86).

       Neither did CPG standard 404.5 impose on Raven a duty to ensure Ida

accepted the services offered under her plan of care in the home. See AR at 183 6

(Ex. 38, at 4). CPG standard 404.5 required Raven to select residential placements

that provide for physical comfort and safety to the extent possible. This does not

require a guardian to succeed in overcoming problems with staffing beyond the

guardian's control, such as staffing shortages, the ward's extreme resistance to

care, or obstructionist tendencies by a ward's family. As both Raven and amici

argue, endorsing DSHS 's view that Raven had a duty to ensure Ida accepted the

care that was offered sets up an untenable standard for guardians akin to strict

liability. See, e.g., Br. of Amicus Curiae Washington Academy of Elder Law

Att'ys at 11. We reject the suggestion that guardians have a duty to ensure their

wards accept the care provided to them.

       As to the remaining duties identified by the review judge, as noted, the

review judge misinterpreted CPG standard 404.5 when he concluded Raven had

failed to secure a residential placement that met Ida's needs. Again, CPG standard

404.5 required Raven to select residential placements that provide for physical

comfort and safety to the extent possible. She did so. It was beyond her control

that the care agency could not fill all Ida's staffing hours, particularly where the




                                           -22-
Raven (Resa) v. Dep 't of Soc. & Health Servs., 87483-2




record indicates it was unlikely any care agency could have done so. AR at 132

(Finding of Fact 84-85). 12

       The review judge was correct that Raven had a duty to research and evaluate

residential placement alternatives.     And the evidence substantially supports his

view that Raven failed to carry out that duty. It appears from the record that she

never asked about whether there were temporary placement options short of

permanent residential placements that might have provided more care. See, e.g.,

Administrative Report of Proceedings (ARP) at 670 (testimony of Raven). The

judge was also correct that Raven had a duty to provide informed medical consent

on Ida's behalf, and substantial evidence supports his finding that Raven had only

a vague knowledge of Ida's medical needs.              See, e.g., ARP at 668, 725-26

(testimony of Raven). Likewise, the review judge correctly invoked CPG standard

401.15, requiring a guardian to have meaningful in-person contact with her ward,

including in-home visits. Substantial evidence supports the review judge's finding

that Raven made minimal visits in 2006, including when Ida was experiencing

significant medical issues. The optimal number of visits for a guardian is based on

the unique circumstances of the situation, but Raven's guardianship expert


       12
           DSHS argues that in June 2006 "another agency expressed interest in working
with Ida, but Raven decided to continue using CCS." Suppl. Br. of Resp't at 11.
Although the record does indicate that Raven had talked with another agency about
providing care, nothing in the record indicates if that agency actually had the staff to
fulfill Ida's hours or the staff willing to work on weekends or after 5 p.m., which were the
difficult slots to fill for Ida. See AR at 132 (Finding of Fact 85). The record does
demonstrate that that same agency DSHS identifies as being available in June 2006 was
not able to provide staffing in December 2006 at CCS's request. See AR at 876 (Ex. 10,
at 58); ARP at 593.

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Raven (Resa) v. Dep't of Soc. & Health Servs., 87483-2




acknowledged that Raven would "have been better off' if she had seen Ida more

frequently, somewhere in the order of at least once a month.          ARP at 643

(testimony of Thomas O'Brien).

      However, the review judge erred when he concluded that Raven failed a

duty to pursue independent providers for Ida or a duty to step aside as guardian so

that someone could be appointed who would supervise independent providers.

Ironically, Raven's decision not to pursue the option of independent providers was

consistent with CPO standard 401.6, which required her to acknowledge her

personal limits. DSHS made an express finding that it was speculative whether

independent providers would have been available had Raven pursued the option,

let alone made a difference in Ida's care given her resistance to care giving. AR at

122-23. In addition, the review judge's citation to CPO standard 407.2 to support

his conclusion that Raven should have stepped aside if she did not feel comfortable

.supervising independent providers is unavailing. CPO standard 407.2 is applicable

to scenarios in which circumstances have changed such that the guardianship itself

must be terminated, i.e., the incapacitated person is no longer incapacitated. It

does not require a guardian to terminate her representation as guardian because she

decides not to pursue a course of action, whose success is speculative at best,

outside her knowledge and expertise.

       Thus, we are left with three findings of fact and conclusions of law as to

Raven's duties and failings that are supported in fact and law: that Raven failed,

under the CPO Standards, in her duty to adequately research and regularly review


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Raven (Resa) v. Dep't of Soc. & Health Servs., 87483-2




Ida's residential options; failed in her duty to become and stay informed as to Ida's

medical needs; and failed in her duty to make meaningful, in-person contacts with

Ida that allowed her to observe Ida's circumstances and interactions with

caregivers. We must decide whether these failures amount to neglect under RCW

74.34.020(12), as addressed below.

      2. Raven's shortcomings as a guardian and the neglect standard

      DSHS concluded that Raven's failings as a guardian amounted to neglect

using the "pattern of conduct" prong of the neglect definition, which defines

neglect as

       a pattern of conduct or inaction by a person or entity with a duty of care that [(1)]
       fails to provide the goods and services that maintain physical or mental health of a
       vulnerable adult, or that [(2)] fails to avoid or prevent physical or mental harm or
       pain to a vulnerable adult.

RCW 74.34.020(12)(a). 13 We cannot disturb this determination unless, as Raven

argues, we determine that the review judge erroneously interpreted or applied the

law, or the decision is not supported by evidence that is substantial when viewed in

light of the record. Under this standard, we conclude that DSHS's review judge

erred in finding a pattern constituting neglect because the conclusion is not

supported by substantial evidence.




       13
            DSHS did not rely on the alternative definition of neglect, "an act or omission
that demonstrates a serious disregard of consequences of such a magnitude as to
constitute a clear and present danger to the vulnerable adult's health, welfare, or safety,
including but not limited to conduct prohibited under RCW 9A.42.100." RCW
74.34.020(12)(b ).

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Raven (Resa) v. Dep 't of Soc. & Health Servs., 87483-2




      As noted, substantial evidence in the record supports the review judge's

factual conclusions that Raven failed, under the CPG Standards, in her duty to

adequately research and regularly review Ida's residential options, failed in her

duty to become and stay informed as to Ida's medical needs, and failed in her duty

to make meaningful, in-person contacts with Ida that allowed her to observe Ida's

circumstances and interactions with caregivers.

       But these instances do not sustain a finding of neglect under RCW

74.34.020(12)(a).    This record does not establish that Raven's conduct-while

lacking in many respects from a professional standpoint-failed to provide the

goods and services needed to maintain Ida's physical health or that her conduct

resulted in physical or mental harm or pain to Ida.

       As to the first subsection of the definition, because we conclude that under

this record Raven had no duty to pursue independent providers, Ida was offered the

goods and services that were reasonably available to her-that is, the agencies

serving her were providing as much staff as they could. AR at 132 (Findings of

Fact 84-85). There is no finding of fact that Raven denied Ida medical attention

when she required it.      As to Raven's failure to explore alternative residential

placements, it is likely true that Ida would have had round-the-clock access to

goods and services in an out-of-home placement, but again, she had the goods and

services reasonably available in the setting least restrictive to her freedom and in

accordance with her wishes.




                                           -26-
Raven (Resa) v. Dep't of Soc. & Health Servs., 87483-2




      The question of whether Raven's conduct failed to avoid or prevent physical

harm to Ida is closer. As to Raven's failure to explore alternative temporary

placements, it is true that Ida's bedsores improved at the rehabilitation facility that

she entered following the last severe bout with bedsores in December 2006. But,

Ida also died there, and thus we do not know what would have happened had she

returned home. Even when at home Ida went through periods where her skin

issues resolved and periods where they were acute. The record gives no reason to

conclude that pattern would not have continued even after Ida had returned from a

temporary placement outside the home.            Nor is there evidence that Raven's

inadequate knowledge about the treatment of bedsores resulted in a failure to take

steps recommended by Ida's medical care providers when needed. And, there is

evidence that staffing issues and Ida's combative behavior were getting in the way

of her care plan, which is unconnected in this record to Raven's lack of knowledge

about bedsores.

       Finally, the infrequency of Raven's in-person visits is very troubling. But

the record reflects Raven was in regular contact with Ida's caregivers and their

supervisors. Given that Raven was not herself a caregiver, and given that Raven

demonstrated attentiveness to the concerns and recommendations of the caregivers,

this record evinces no nexus between her infrequent visits and Ida's deterioration.

       To be clear, the plain language of RCW 74.34.020(12) does not require that

the alleged perpetrator of neglect be the only actor with problematic conduct. But

the statute does require that the alleged perpetrator's actions or conduct fail to


                                          -27-
Raven (Resa) v. Dep't ofSoc. & Health Servs., 87483-2




provide goods or services, or avoid harm to the ward. This is not a tort causation

standard, but it plainly requires a nexus. On this record, there is not substantial

evidence demonstrating that among the many forces at play here, Raven's

shortcomings as a guardian resulted in a failure to provide goods or services or

avoid harm to Ida.     On the contrary, despite several professional missteps, the

evidence indicates that Raven was reasonably diligent in securing Ida's

medication, services from doctors and other health professionals, and worked with

the care agencies on the staffing shortfalls. 14

C.   Raven is not entitled to attorney fees

       The superior court that heard Raven's administrative appeal awarded her

attorney fees under the BAJA. Under that statute, "a court shall award a qualified

party that prevails in a judicial review of an agency action fees and other expenses,

including reasonable attorneys' fees, unless the court finds that the agency action

was substantially justified or that circumstances make an award unjust." RCW

4.84.350(1) (emphasis added). "'Substantially justified means justified to a degree

that would satisfy a reasonable person.'" Silverstreak, Inc. v. Dep 't of Labor &

Indus., 159 Wn.2d 868, 892, 154 P.3d 891 (2007) (quoting Moen v. Spokane City

Police Dep't, 110 Wn. App. 714, 721, 42 P.3d 456 (2002)). And, an action is

substantially justified if it had a reasonable basis in law and in fact. Aponte v.

Dep't of Soc. & Health Servs., 92 Wn. App. 604,623,965 P.2d 626 (1998)


       14
          Given our resolution of this case, we need not address Raven's remaining
contention about whether harm must be shown under RCW 74.34.020(12)(a).

                                           -28-
Raven (Resa) v. Dep 't ofSoc. & Health Servs., 87 483-2




(quoting Sneede v. Coye, 856 F. Supp. 526, 530-31 (N.D. Cal. 1994)). That is, it

need not be correct, only reasonable. Pierce v. Underwood, 487 U.S. 552, 566 n.2,

108 S. Ct. 2541, 101 L. Ed. 2d 490 (1988). A trial court's award of attorney fees

under the equal access to justice act is reviewed for abuse of discretion. Plum

Creek Timber Co. v. Wash. State Forest Practices Appeals Bd., 99 Wn. App. 579,

595, 993 P.2d 287 (2000) (citing RCW 4.84.350).            A trial court abuses its

discretion when it makes a decision that is manifestly unreasonable, based on

untenable grounds, or based on untenable reasons.         Moreman v. Butcher, 126

Wn.2d 36, 40, 891 P.2d 725 (1995); see Plum Creek Timber Co., 99 Wn. App. at

595-96 (noting an agency's decision-making process "'involves the balancing of

sensitive, sometimes competing or conflicting interests in a controversial area and

requires analysis of close questions on which there is no clear precedent on

point'").

       An agency action that is arbitrary and capncwus 1s not substantially

justified. Puget Sound Harvesters Ass 'n v. Dep 't ofFish & Wildlife, 157 Wn. App.

935, 952, 239 P.3d 1140 (2010).          On the other end of the spectrum, RCW

4.84.350(1) contemplates that an agency action may be substantially justified, even

when the agency's action is ultimately determined to be unfounded. This may

occur, for example, when the agency's determination, though ultimately

unsupported by the evidence, was made on the best available evidence at the time

of the decision. Kettle Range Conservation Grp. v. Dep't ofNatural Res., 120 Wn.

App. 434, 469-70, 85 P.3d 894 (2003).


                                           -29-
Raven (Resa) v. Dep 't of Soc. & Health Servs., 87483:..2




       Here, the superior court concluded DSHS 's actions were not substantially

justified. The court's order did not offer any reasons for its conclusion. Clerk's

Papers at 94. In the absence of an explanation by the trial court for its ruling, and

in light of the record here, we must conclude that the trial court made an untenable

decision. Regardless of whether Raven's conduct amounted to neglect, the record

is clear that Raven exhibited several significant shortcomings as a guardian. More

to the point, under the facts here, an agency would be reasonable in pursuing the

same course of conduct that DSHS followed. Part of the justification for a fee-

shifting statute like the EAJA is that the legislature wants to "ensure citizens a

better opportunity to defend themselves from inappropriate state agency actions."

Costanich v. Dep't of Soc. & Health Servs., 164 Wn.2d 925, 929, 194 PJd 988

(2008) (emphasis added). We are wary of upholding a fee judgment that suggests

the sort of facts we are faced with here do not create substantial justification to

pursue a neglect finding, particularly where there has been no determination that

DSHS's actions were arbitrary, willful, or capricious.

       Accordingly, although Raven is the prevailing party in this action, we

conclude DSHS 's action was substantially justified, reverse the trial court's award

of fees at that level, and reject Raven's request for fees before this court.

                                     CONCLUSION

       This case poses a difficult set of facts in which it is undeniable that Ida's last

years were not comfortable or dignified. As DSHS recognized, "one could not

script a more trying case for caregivers, family members, public and private care


                                            -30-
Raven (Resa) v. Dep't of Soc. & Health Servs., 87483-2




agencies, courts, and guardians than the one at hand." AR at 158. And it is

without question that Raven could have made better decisions in some areas and

that she exercised poor judgment in meeting her mandates under professional

standards in others. But the evidentiary record here cannot sustain a finding that

these failings amounted to neglect on Raven's part under RCW 74.34.020(12)(a).

Accordingly, we reverse DSHS 's finding of neglect against Raven. As to attorney

fees, we reverse the superior court and hold that DSHS' s action against Raven,

while ultimately unsupported, was substantially justified, and that Raven is not

entitled to attorney fees.




                                          -31-
Raven (Resa) v. Dep't of Soc. & Health Servs., 87483-2




WE CONCUR:




                                          -32-
