LEGAL ASPECTS OF GUARDIANSHIP

1. LEGAL ASPECTS OF GUARDIANSHIP Allyson K. Tysinger Senior Assistant Attorney General May 26, 2009

2. What is a Guardian?§ 37.2-1000 • Appointed by circuit court • Responsible for personal affairs of incapacitated person, including • decisions regarding person’s support, care, health, safety, habilitation, education, treatment • residence, if not inconsistent with order of commitment • includes 1) local or regional program designated by Department of Aging as public guardian or 2) local or regional tax-exempt organization

3. What is a Conservator?§ 37.2-1000 • Person appointed by circuit court • Responsible for managing estate and financial affairs of incapacitated person • Includes 1) local or regional program designated by the Department of Aging as public conservator, or 2) local or regional tax exempt organization

4. Incapacitated Person§ 37.2-1000 • Adult found by circuit court to be incapable of • receiving and evaluating information effectively or • responding to people, events or environments to such an extent that individual lacks capacity to: • meet essential requirements for health, care, safety or therapeutic needs without assistance of guardian or • manage property or financial affairs or provide for his or her support or support of legal dependents without assistance of conservator

5. Incapacitated Person (cont.)§ 37.2-1000 • Finding that individual displays poor judgment alone not sufficient evidence that person is “incapacitated person” • Finding that person is incapacitated construed as finding that person is “mentally incompetent” unless Court Order provides otherwise (loses right to vote)

6. When Guardian Appropriate • For persons whose incapacity not likely to change over time • persons with profound/severe MR • geriatric patients • persons with long term chronic MI

7. Practical Considerations • Time • Cost (Petitioner’s atty; GAL; fees) • Modification of Orders • Availability of Persons to Serve • Annual Reports • Limitations on Rights • vote, marry, contract, own firearm, make own treatment/financial decisions

8. Alternatives to Guardianship • Advance Directives - § 54.1-2982 et seq. • Human Rights Regulations - 12 VAC 35-115-146 (Authorized Representative) • Health Care Decisions Act - § 54.1-2986 • Court Ordered Treatment - §§ 37.2-1100 through 37.2-1109 • Two Physician/Dentist Certification - § 54.1-2970

9. Guardianship Petition§ 37.2-1001 • Where filed • Circuit Court of County or City where respondent • is a resident • is located • in which respondent resided prior to becoming a patient or resident • Any person may file petition

10. Petition Contents§ 37.2-1002 • Petitioner’s name, address, place of residence, and relationship, if any, to respondent • Respondent’s name, DOB, place of residence, sealed filing of SSN, address • Names and addresses of respondent’s spouse, adult children, parents, siblings or if no such relatives known, 3 other known relatives • If relatives unknown, petitioner must certify this

11. Petition Contents§ 37.2-1002 • Name and address of facility that has assumed care of respondent • Name and address of anyone acting under a power of attorney/advance directive or as current guardian or conservator with copy of documentation attached • Whether guardianship or conservatorship is requested and if limited

12. Petition Contents§ 37.2-1002 • Brief description of nature and extent of respondent’s alleged incapacity • Brief description of services currently being provided for respondent’s health, care and safety • Recommendations as to proposed living arrangement and treatment plan

13. Petition Contents§ 37.2-1002 • Name and address of proposed guardian or conservator and relationship, if any, to respondent • Native language of respondent • Statement of financial resources of respondent • Statement whether petitioner believes respondent’s attendance at the hearing would be detrimental to his health, care or safety

14. Guardian ad Litem§ 37.2-1003 • Petition must request appointment of guardian ad litem (lawyer who looks out for best interest of respondent) • Personally visits respondent and advises respondent of rights and certifies to court this has been done • Investigates petition and evidence • Files Report with court • Personally appears at all court proceedings • Petitioner pays fee of GAL unless court orders taxed as costs

15. Guardian ad Litem Report§ 37.2-1003(C) • The GAL addresses the following in his report: • Whether the court has jurisdiction • Whether a guardian or conservator is needed • The extent of the powers of the guardian or conservator • The propriety and suitability of the person selected as guardian or conservator • Recommendation as to amount of surety • Consideration of appropriate residential placement

16. Notice of Hearing; Jurisdictional§ 37.2-1004 • Respondent given reasonable notice of hearing and notice of rights in 14 point type • Notice must be mailed 7 days prior to hearing to all adults whose names and addresses appear in petition • Petitioner must file certification with court of compliance with notice requirements

17. Evaluation Report§ 37.2-1005 • Report must be completed by one or more licensed physicians or psychologists, or licensed professionals “skilled in assessment and treatment of physical and mental conditions of respondent” • Report must be filed with court with copy to Guardian ad Litem

18. Evaluation Report Contents§ 37.2-1005 • Report must contain: • Description of nature, type and extent of respondent’s incapacity and specific functional impairments • Diagnosis or assessment of respondent’s mental and physical conditions, medications, ability to learn self-care skills, adaptive behaviors and social skills, and prognosis for improvement • Date or dates of exams, evaluations and assessments upon which report is based

19. Counsel for Respondent § 37.2-1006 • Respondent may hire counsel of his choosing • At recommendation of Guardian ad Litem or at request of respondent, court may appoint counsel if it determines counsel needed to protect respondent’s interests • Fee fixed by court • Fee taxed as costs of proceeding

20. Hearing§ 37.2-1007 • Respondent entitled to jury trial upon request • Respondent may call and cross-exam witnesses • Proposed guardian/conservator shall attend • Respondent may attend

21. Decision to Appoint Guardian§ 37.2-1007 • Court must consider following factors: • limitations of respondent • development of respondent’s maximum self-reliance and independence • availability of less restrictive alternatives, e.g. durable powers of attorney, advance directives • extent necessary to protect respondent from neglect, exploitation or abuse

22. Decision to Appoint (cont.)§ 37.2-1007 • Factors (cont.) • actions needed to be taken by guardian/conservator • suitability of proposed guardian/conservator, giving deference to wishes of respondent

23. Decision to Appoint (cont’d)§ 37.2-1007 • After considering all the evidence, the court will appoint a guardian or conservator if it determines based on clear and convincing evidence that • Respondent is incapacitated • In need of guardian or conservator

24. Court Order of Appointment§ 37.2-1009 • State the nature and extent of respondent’s incapacity • Define powers and duties of guardian/conservator • Specify whether appointment is limited to specific time • Include any limitations on powers and duties of guardian/conservator • Specify legal disabilities of respondent • Set bond of guardian or conservator

25. Fees and Costs§ 37.2-1008 • Petitioner pays filing fee and costs • Service fees & court costs waived if respondent’s estate is unavailable or insufficient • If guardian appointed, and estate is available and sufficient, court orders reimbursement for all costs and fees

26. Fees and Costs (cont.)§ 37.2-1008 • If guardian not appointed, court may still order reimbursement • if brought in good faith • for benefit of respondent, and • estate is sufficient • If respondent is indigent, fees and costs of proceeding that are fixed by Court or taxed as costs paid by Commonwealth

27. Public Guardian or Conservator§ 37.2-1010 • Court may appoint local or regional program authorized by Department for Aging as guardian or conservator if: • Respondent’s resources insufficient to completely compensate private guardian and pay court costs and fees, and • No other proper and suitable person willing and able to serve • Guidelines for determining indigency in Va. Code Section 19.2-159

28. Public Guardian (cont.)§ 37.2-1015 • If no one is appointed within one month of finding of incapacity and no one identified to serve, court may appoint local or regional Public Guardian program. • If no such program within court’s jurisdiction, court may appoint program within 60 miles of respondent’s residence unless program reached or exceeded ideal ratio of clients to staff

29. Qualification of Guardian§ 37.2-1011 • Must qualify before the clerk of court: • subscribe to an oath promising to faithfully perform duties of office • post bond, no surety required on bond of guardian; conservator’s bond with or without surety in accordance with court’s order • accept any educational materials provided by court • http://www.courts.state.va.us/forms/circuit/cc-1652.pdf

30. Clerk’s Duties§ 37.2-1011 • Upon qualification, clerk issues certificate, with copy of order appended, to guardian or conservator • Record as power of attorney • Provide copy to commissioner of accounts • If appoints guardian, provide copy to local department of social services

31. Clerk’s Additional Duties§ 37.2-1014 • Index findings in deed books • Notify DMHMRSAS Commissioner of appointment of fiduciary for any person in state facility (37.2-1029) • Notify State Board of Elections • Notify Central Criminal Records Exchange

32. Petitions for Modification • Va. Code § 37.2-1012 establishes procedures for restoration of capacity, modification or termination of the order

33. Duties and Powers of Guardian§ 37.2-1020 • Stands in fiduciary relationship to person and personally liable for breach of fiduciary duty • Not liable for acts of person, unless guardian personally negligent • Not required to expend personal funds on behalf of person

34. Duties/Powers (cont.)§ 37.2-1020 • Shall not extend to decisions addressed in valid advance directive or durable power of attorney • Guardian may seek court authorization to change or modify designation of agent but not directives concerning treatment • Guardian shall maintain sufficient contact with person to know capabilities, limitations, needs and opportunities, and visit as often as necessary

35. Duties/Powers (cont.)§ 37.2-1020 • Guardian must seek prior court authorization • to change person’s residence out of state • to terminate or consent to termination of parental rights • to initiate change in person’s marital status

36. Duties/Powers (cont.)§ 37.2-1020 • Guardian shall, to extent feasible, encourage person to participate in decisions, act on his/ her own behalf, develop or regain capacity • Guardian shall consider expressed desires and personal values of person to extent known • Guardian shall otherwise act in person’s best interest and exercise reasonable care, diligence and prudence

37. Guardian’s Annual Report§ 37.2-1021 • Description of current mental, physical, and social condition of person • Description of person’s living arrangements • Medical, educational, vocational, and other professional services provided and guardian’s opinion as to adequacy of person’s care

38. Guardian’s Report (cont.)§ 37.2-1021 • Statement of frequency and nature of guardian’s visits with and activities on behalf of person • Statement whether guardian agrees with current treatment or habilitation plan • Recommendation as to continued need for guardianship, changes in scope of guardianship, and any other useful information

39. Guardian’s Report (cont.)§ 37.2-1021 • Compensation requested and reasonable and necessary expenses incurred • Must file with local department of social services in jurisdiction where guardian qualified • On Form prepared by Executive Secretary of Virginia Supreme Court • http://www.courts.state.va.us/forms/circuit/cc1644.pdf • $5 filing fee