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					Annual Training Materials: Title 11 Guardians ad Litem April 25, 2008

Whatcom County Superior Court

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Training Logistics…
 Restrooms…  Clean

up…

phones…  Coffee, snacks…  Schedule…  Evaluations…

 Cell

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Welcome & Introductions ~
Barry Meyers
     

Randy Boyer Candace McCormick Jeff Quigley Penny Henderson Dr. Levine Cindy Maxwell
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  

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Lexie Lamborn Constance Gould Joel Bergsbaken Moonwater Emma Endicott

Participants….

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Statutory Changes, Case Law & Bills of Interest ~ Randy Boyer

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Legislation


Legislation is available online at http://apps.leg.wa.gov/billinfo/

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Legislation
 Bills

that became Law  No Guardianship bills passed during 2008 Session.  Many Bills were introduced to regulate guardianships.  Bills of Interest are as follows:
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2SHB 3104 Domestic Partners Act.
  

In 2007 the Legislature passed the Domestic Partnership Act creating domestic registries. In 2008 2SHB extends many rights and responsibilities of spouses to domestic partners. The amended statutes relate to dissolutions, community property, estate planning, taxes, court process, service to indigent veterans and other public assistance, conflicts of interests for public officials and guardianships.

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SSB 6807, now Chapter 251 Laws of 2008 – Boarding Homes
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This legislation limits the circumstances under which a boarding home can discharge a resident who is on Medicaid. Residents who were on Medicaid cannot be discharged when a boarding home ceases to take Medicaid patients. Notice must be given to residents. Bill is effective 3/28/2008

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SHB 2666 Long Term Care Insurance
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Legislation enacts minimum terms and conditions for long term care insurance sold in the State of Washington. This is based on a national uniform act. Legislation is effective January 1, 2009

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E2SHB 2668 Long Term Care
  

Provides a one time voucher for care providers which may be used for respite or other services. DSHS is directed to provide additional support to residents in community settings. DSHS is to administer grants to expand adult day services.

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Legislation
 Bills


Introduced but not passed

The legislature has introduced numerous guardianship bills.  These Bills indicate the concerns of the legislators

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SB 5016 Limiting Petitions by Guardians
Would require a professional guardian to comply with Ethics Opinions issued by the Certified Professional Guardian Board  The existing advisory opinion requires the professional guardian to avoid if possible filing a petition nominating itself as guardian


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SB 5017 - Fees in Guardianship
Bill would award attorney fees to prevailing party in mediation  The Professional Guardian and counsel would not be allowed attorney fees in a petition to modify or terminate a guardianship unless the Guardian substantially prevailed


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SSB 5018 Roles of Guardian
Bill would prohibit a Guardian from acting in dual roles, including not also serving as attorney or GAL for same AIP  Limits Guardian from petitioning to be appointed as Guardian


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SB 6207 Notification of Abuse


An act to require notification of the GAL of allegations of child abuse

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SB 6632 Priority in Guardian Appointment


Adds a Section to 11.88 establishing a priority for who is appointed as Guardian.

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SB 6721 GAL Task Force
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This Bill would create a task force on GALs representing the best interests of children in cases under Titles 13 and 26.

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HB 1010 Notification Juvenile Custody


This Bill would require notification of parents, guardians and custodians when a juvenile is taken into custody.

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HB 1212 Vulnerable Adults
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The Bill would adopt a discovery rule in Vulnerable Adult actions.

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HB 1130 Public Guardianships


Last year a public guardianship act was passed. This Bill would make the public guardianship program an independent agency of the judiciary.

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HB 2278 Guardianship Limitations
Provides for privacy of financial information  Prevents a hospital or nursing home from petitioning for guardianship  Provides additional notice requirements


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HB 2487 Vulnerable Adults


Adds protections to the Vulnerable Adult Act.

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HB 2937 Elder Abuse
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The Bill would authorize DSHS to conduct a department review when they feel an elder death is related to abuse

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State Cases
MRSC Link to look up cases http://search.mrsc.org/nxt/gateway.dll?f=t emplates&fn=courts.htm$vid=courts:court  State Link for Recent Cases http://www.courts.wa.gov/opinions/
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State Cases
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Recent Cases

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Endicott v. Saul
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Reported at No. 58435-9-I Consolidated w/ No. 585312-I, COURT OF APPEALS OF WASHINGTON, DIVISION ONE, 176 P.3d 560; 2008 Wash. App. LEXIS 279, February 4, 2008 Trial Court appoints a Guardian despite fact that medical report and GAL both found no Guardian should be appointed This case demonstrates that the decision to appoint a guardian is for the trier of fact. It is not simply a medical decision.

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Guardianship of Gertrude Healey
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Unpublished, Division 1, 08/27/2007, Case No. 5831606-I Good discussion of GAL Appointment and performance The Appellate Court approved appointment out of rotation due to need for an experienced GAL in complex case The AIP did not need to be at the hearing if she did not want to attend.

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Campbell v. Johnson
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Unpublished, Division 1, 10/29/2007, Case No. 587668-I Good news for attorneys – the Court of Appeals refused to extend the Treadwell holding to Estate cases. In Treadwell the Court of Appeals held that an attorney could be liable for actions of the Guardian since the bond was not furnished. In this case the duty of the attorney ran to the PR and not directly to the heirs.

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Guardianship of Kwiatkowski
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Unpublished, Court of Appeals, Division III, 01/08/2008 A suit for breach of fiduciary duty against guardians The Court held that final discharge of Guardians by the Court prevented a later suit for breach of fiduciary duty and negligence

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Guardianship of Marry Riddle
 

Unpublished, Division III, Case No. 25434-III The court imposed a constructive trust on funds received by the Guardian from a refund from a retirement apartment even though the contract called for the guardian to receive the refund.

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Wynn v. Earin
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Washington Supreme Court, Published – April 3, 2008, Case No. 78247-4 Husband’s Counselor released medical records to GAL without a proper release under HIPA. Husband sued the counselor for violation of HIPA Suit also sought damages for Counselor providing testimony harmful to Husband Witness immunity protected the counselor but Counselor was liable for attorney fees for release of medical information. Fees limited to portion of case relating to HIPA.
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Proposed Court Rules


Available at http://www.courts.wa.gov/court_rules

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GR 34 Access to Justice


The amendment would broaden the rights to waiver of Court fees to persons lacking financial means to pay the fees

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GR 23 Certifying Professional Guardians
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The Amendments greatly expand the requirements for certification and experience of Guardians

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Reminder
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GR 31(c) requires redaction of personal identification numbers such as birth dates and Social Security Numbers. KCLCR 98.20 Requires the GAL to notify the Court Clerk by filing a form for loss of voting rights of the AIP. The rule also requires that any change in the reporting period dates must be approved on an Order form approved by the Court. SCLCR 98.16 The Order Appointing Guardian shall place on the first page the dates for the reports, inventory, personal care plan and letters expiration.
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Reminder


WCGALR 1 (a) Receipts for Blocked Accounts must be filed within 30 days of the entry appointing Guardian.

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Other Matters of Interest


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King County has a policy that Guardianships for a Minor by a third party are inappropriate where there are parents who object. A third-party custody proceeding must be used instead. The Guardian Board has announced that the current training program will end this year. This will be replaced by a Certificate Program for Guardians in collaboration with the UW Extension Office.

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Endicott v. Saul
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Break-Out, by tables !
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Assignment: Three questions about Endicott v. Saul are being handed out. Each table shall review the question and discuss it among themselves for approximately 5-7 minutes. Then tables will be asked for their comments on the question just reviewed. The same will be done for each question.

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GAL Checklist ~ Candace McCormick



Checklist, for initial evaluation & ongoing assessment of changes in condition (See page 8) Components of Caring for Self and/or Property (See Page 10)

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Break – 10 minutes… OK?

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Observing the Environment ~
Jeff Quigley

Medication for elderly adults
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Medication misuse Why older adults have more medication problems Risks associated with taking drugs More about medications and alcohol More about the elderly and alcohol Working with your healthcare provider Work with one pharmacy Reducing possible side-effects
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Observing the Environment
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Medication Do’s and Don’ts Guidelines for taking Over the Counter Medications Herbal Medicine Medications Not Recommended for Seniors- The Beers Criteria

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Observing the Environment
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Environmental Assessment

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Signs of alcohol or medication-related problems

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What is the true financial condition? ~
Penny Henderson & Brian Hansen

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How to find the money…

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Who to ask?
     

AIP Caregivers Relatives and Friends Neighbors Financial Institutions Government

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How to ask
Use the order appointing you: ―(q) The Guardian ad Litem shall have access to all information regarding the alleged incapacitated person. Such information may contain, but is not limited to the following: medical, psychiatric/psychological, financial records or documentation; matters of legal representation of the alleged incapacitated person, and trust accounts for or on behalf of the alleged incapacitated person shall be released to the Guardian ad Litem. The Guardian ad Litem shall maintain any information received as confidential and shall not disclose said information except in oral or written reports to the Court, the parties and their counsel.‖
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How to ask, continued
 

Subpoena Motion to Compel Compliance with Order

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Basic questions about income:
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Income from work? Retirement or pension? Social Security? Social Security Disability? GAU/GAR? Investment income? Annuities? Lottery winnings? Canadian or other social insurance? Other household members’ income?

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Basic Questions about assets:
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Real Estate? Bank accounts? Stocks/bonds? Other money accounts? Money under the mattress? Vehicles, time shares, interests in business? Canadian or other foreign assets? Trusts? Income Tax Returns? Insurance or annuities?
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More about assets:


Assets that could generate income:
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Real Estate –appraised vs. assessed value
• • •

Assessor’s website: http://www.co.whatcom.wa.us/assessor/index.jsp Qualifications of appraisers, free versus paid http://www.zillow.com/ Kelley Blue Book: http://www.kbb.com/ NADA Guides: http://www.nadaguides.com/ Business ventures/ownership –value Whatcom County Assessor property tax rolls Business tax returns-sales, business & occupation

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Vehicles – needs and value
• • • •

•

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How about Expenses?
Typical Expenses:
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mortgage rent taxes insurance Utilities food clothing Medicare part B and D medications and how purchased-generic, purchased in Canada? monthly payments on debt and outstanding balances caregivers—cash or taxpaying? support of other family members, non-family members gambling alcohol cigarettes other

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Stumped?
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Intelius-a web-based comprehensive search engine for a person’s assets and liabilities, residences, relatives and other information. A name is needed, and a date of birth and social is helpful but not required. http://www.intelius.com/searchname.php?searchform=name& 4th Corner Network (Robin Mullins) is very experienced at asset and debt checks and will perform a search for a modest fee: 671-2455

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Do we have a Vulnerable Adult Situation? ~ Jeff Quigley
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Definition of a vulnerable adult is found in RCW 74.34.020 Sixty years of age or older who has the functional, mental, or physical inability to care for himself or herself; or Found incapacitated under chapter 11.88 RCW; or Who has a developmental disability as defined under RCW 71A.10.020; or Admitted to any facility; or Receiving services from home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.127 RCW; or Receiving services from an individual provider

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Do we have a Vulnerable Adult Situation?
Gray areas of the definition; functional, mental or physical.  Functional is defined as;
A special duty or performance required in the course of work or activity. To act in a required or expected manner; do its work 

Mental is defined as;
Of the mind or intellect, done by or carried on in the mind; having a mental disorder; mentally ill.



Physical is defined as;
Of the body as opposed to the mind, produced by the forces of physics

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Do we have a Vulnerable Adult Situation?
Essentially, if someone is over the age of 60 and they are unable to meet their own care needs then they are considered a vulnerable adult by 74.34 set forth by the legislature. The challenge is to describe what care needs are for this population of people.

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Lunch 30 minutes
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Medical & Psychological Hints and Sources ~

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Finding the Best Evaluations~
Candace McCormick
11.88.045 (4) …the court must be presented with a written report from a physician…psychologist…or advanced registered nurse practitioner…


Is the AIP’s attending physician the best choice? Why?
  

Familiarity with the AIP Chart notes Has seen or can see the AIP within the required 30 days Presenting issue may be outside of that provider’s expertise Potential for bias or influence Potential of having a negative impact on the provider’s relationship with the AIP

Why not?
  

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Evaluations…


What does a GAL do if the AIP doesn’t have an attending medical or mental health professional?
1. 2. 3. 4.

Determine what type of evaluation is needed: Medical Neurological Mental Health



Determine financial resources for the evaluation:
1. 2. 3.

Insurance Funds from the AIP’s estate County pay (requires pre-approval)



Identify a provider


Network with other GAL’s; CPG’s, attorneys and social agencies.

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Evaluations…


When would a GAL want to have a supplemental report?


AIP has multiple issues that suggest a supplemental report is needed to determine level of incapacity in order to remain least restrictive. (Examples: CP; mild autism; head injury, etc.)



What’s the difference between a physician and psychiatrist since both are M.D.’s?

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Evaluations…


What’s the difference between a psychiatrist and a psychologist?


Medication evaluations/management:
• • • • Cognitive testing: Clinical interview: Offer Diagnoses: Counseling:

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What’s the difference between a Ph.D. and a Psy. D.? What’s a neuropsychologist? When is an A.R.N.P. appropriate? What information needs to be provided in the written report?


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RCW 11.88.045 (4) (a-i)

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Break – 10 minutes… OK?

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How to Find the Appropriate Guardian ~
Lexie Lamborn & Cindy Maxwell

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Factors to Consider
attributes: a great GOE may not be so great in the role of a GOP and visa versa  Co-guardians or two different guardians?  Warning signs  Which factors are more important than others in the case?
 Matching  Financial

stability, age/longevity issues, stamina, patience, financial sophistication, succession, time constraints, location, assertiveness, family dynamics, independent

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GAL Testimony/Attorney for GAL ~
Constance Gould
  

GAL is a witness in all guardianship cases All information gathered by GAL is subject to disclosure GAL must remain neutral, treat all persons interviewed and all counsel with courtesy and must maintain the appearance of fairness and neutrality GAL testifies through the GAL report and through live testimony even in the uncontested hearing

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In contested case is GAL a party?
Is GAL an expert witness?
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GAL Testimony/Attorney for GAL ~
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If GAL’s recommendation is contested and case is to be tried, determine if you need to have an attorney appointed to represent you as GAL. CONSIDER: Has the deposition of the GAL been noted? Has there been a jury demand? Is anyone personally attacking the GAL? How does the GAL get permission to have an attorney? Who will pay for the GAL’s attorney?

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GAL Testimony/Attorney for GAL ~
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What questions can GAL anticipate being asked at trial? If the trial is by jury, may the GAL say he/she was appointed “As the eyes and ears of the Court?” May you or your attorney, if you have one, question witnesses at trial? GAL must keep cool on the stand, even if counsel seems to be attacking GAL personally; GAL must be a professional, dispassionate witness

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Mock Mediation ~
Joel Bergsbaken & Moonwater

Endicott Case Island County Superior Court

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Mediation Agenda ~
Finances  Property  Shorty  Guardianship  Relationships (family, friends, neighbors)  Caretaking

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Contact Information ~

Whatcom Dispute Resolution Center 13 Prospect Street Bellingham, WA 98225 (360) 676-0122
www.whatcomdrc.org

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Perspective from the Bench ~
Introduction by Judge Snyder, Whatcom County Superior Court

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Summary ~
What we tried to offer you…

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Questions?
Turn in your Evaluations to claim your certificate of completion…

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