PROTECTION OF INDIVIDUALS UNDER VIRGINIA GUARDIANSHIP LAW Patti Meire April 2019

Disclaimer Opinions expressed in this presentation are those of the speaker and do not necessarily reflect the views of the Virginia Department for Aging and Rehabilitative Services.

CIRCUIT COURT DECISION No one receives a guardian or conservator unless a Virginia circuit court determines that the individual is incapacitated. A judge or a jury makes the determination Based on “clear and convincing evidence” of incapacity.

Standards of Proof

  INCAPACITY Incapable of evaluating and receiving information to such an extent the person does not have the ability To meet the essential requirements for taking care of their health, safety, daily care, or therapeutic needs (Guardian) To manage property, assets or financial affairs (Conservator) POOR JUDGEMENT ALONE IS NOT SUFFICIENT EVIDENCE TO FIND THE INDIVIDUAL IS INCAPACITATED.

WHAT THE COURT CONSIDERS FOR INCAPACITY A report prepared by a licensed professional skilled in the assessment & treatment of the condition alleged to be the cause of the incapacity. The report should discuss The nature of the alleged incapacity and the person’s specific functional impairments, The diagnosis and the prognosis, Whether medications could affect the person’s behavior, or demeanor, and The person’s ability to learn self-care, adaptive behaviors, and social skills.

PROCESS PROTECTIONS FOR ALLEGEDLY INCAPACITATED PERSON Relatives are notified of the proceeding and receive a copy of the petition. These include Spouse, adult children, parents, and siblings , or Three other relatives, including step-children. If three relatives can’t be identified or located, the petitioner must certify this fact to the court. Anyone having the power to act for the allegedly incapacitated person through a power of attorney or advance directive also notified.

PROCESS PROTECTIONS The allegedly incapacitated person must personally be given notice of the hearing. The notice must include the following statement: AT THE HEARING YOU MAY LOSE MANY OF YOUR RIGHTS. A GUARDIAN MAY BE APPOINTED TO MAKE PERSONAL DECISIONS FOR YOU. A CONSERVATOR MAY BE APPOINTED TO MAKE DECISIONS CONCERNING YOUR PROPERTY AND FINANCES. THE APPOINTMENT MAY AFFECT CONTROL OF HOW YOU SPEND YOUR MONEY, HOW YOUR PROPERTY IS MANAGED AND CONTROLLED, WHO MAKES YOUR MEDICAL DECISIONS, WHERE YOU LIVE, WHETHER YOU ARE ALLOWED TO VOTE, AND OTHER IMPORTANT RIGHTS.

PROCESS PROTECTIONS A guardian ad litem is appointed to represent the allegedly incapacitated person’s best interests. A GAL is an attorney subject to all of the ethical rules and professional standards of the Virginia State Bar A GAL must have completed a training program approved by the Virginia Supreme Court.

PROCESS PROTECTIONS The allegedly incapacitated person also is entitled to an attorney who will represent their wishes. This attorney may be appointed at no cost to the allegedly incapacitated person. The attorney may be requested by the allegedly incapacitated person or the GAL or the court may decide that such an attorney is necessary.

PROCESS PROTECTIONS The allegedly incapacitated person has the right to a jury trial upon request. The allegedly incapacitated person has a right to be at any and all hearings.  

OBLIGATIONS OF GAL Personally visit the allegedly incapacitated person. Advise the person of their right to an attorney to represent their wishes. Advise the person of their right to a jury trial. Recommend the court appoint a second attorney to represent the person’s wishes if the GAL believes this to be in person’s best interest. Investigate the allegations and the evidence. Request additional evaluations of the person’s capacity if the GAL believe this to be appropriate. Appear at all court proceedings. Prepare a written report for the court.

GAL’S WRITTEN REPORT The report must address: Whether a G/C is needed; What the duties of the G/C should be; The suitability of the proposed G/C factoring in (i) the wishes of the allegedly incapacitated person and their relatives, and (ii) the proposed G/C’s relationship to the incapacitated person, geographic location, ability to act as G/C, commitment to promoting the incapacitated person’s welfare, and possible conflicts of interest; and The proper residential setting for the allegedly incapacitated person.

WHAT THE COURT SHOULD CONSIDER IN DECIDING IF A G/C IS NEEDED The person’s limitations. Whether the person’s needs can be met through less restrictive alternatives. How the person might best develop maximum self-reliance and independence. The need to use guardianship/conservatorship to protect the person from abuse, neglect, or exploitation. The suitability of the proposed G/C.

THE POWER OF THE G/C IS DEFINED BY THE COURT The court defines the powers and duties of the G/C. The powers may be limited in scope and time. The powers should be designed to permit the incapacitated person to care for himself and manage her property to the extent of his/her ability.

OBLIGATIONS OF ALL GUARDIANS To the extent feasible, encourage the incapacitated person to participate in decisions, to act on his own behalf, and to develop or regain the capacity to manage personal affairs. Consider the expressed desires and personal values of the incapacitated person to the extent known. Act in the incapacitated person's best interest and exercise reasonable care, diligence, and prudence. Not unreasonably restrict an incapacitated person's ability to communicate with, visit, or interact with other persons with whom the incapacitated person has an established relationship.

EVERYTHING CAN BE CHANGED In a subsequent court proceeding Powers of G/C can be modified; Person serving as the G/C can be changed; Person may be restored to capacity.

ADDITIONAL PROTECTIONS IF A PUBLIC G/C IS INVOLVED Before agreeing to serve as a G/C the multidisciplinary panel is required to consider whether The appointment of a G/C is appropriate, and Is the least restrictive alternative available to assist the person.   The MDP should recommend to the court appropriate limitations on the power of the G/C. The MDP reviews all public G/Cships annually to ensure that the appointment continues to be appropriate.

SUMMARY The purpose is not to deprive people of autonomy but for those who lack capacity to designate a person who will be legally responsible and accountable for acting to protect the person and their interests. The protections provided by Virginia law are Court process Notice to person Notice to family GAL Second attorney Right to jury trial Court consideration of individual needs and circumstances Limitations on the G/C powers Orders may be changed.