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LEGAL ASPECTS OF GUARDIANSHIP. Allyson K. Tysinger Senior Assistant Attorney General May 26, 2009. What is a Guardian? § 37.2-1000. Appointed by circuit court Responsible for personal affairs of incapacitated person, including

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legal aspects of guardianship


Allyson K. Tysinger

Senior Assistant Attorney General

May 26, 2009

what is a guardian 37 2 1000
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
what is a conservator 37 2 1000
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
incapacitated person 37 2 1000
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
incapacitated person cont 37 2 1000
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)
when guardian appropriate
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
practical considerations
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
alternatives to guardianship
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
guardianship petition 37 2 1001
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
petition contents 37 2 1002
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
petition contents 37 2 100211
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
petition contents 37 2 100212
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
petition contents 37 2 100213
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
guardian ad litem 37 2 1003
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
guardian ad litem report 37 2 1003 c
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
notice of hearing jurisdictional 37 2 1004
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
evaluation report 37 2 1005
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
evaluation report contents 37 2 1005
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
counsel for respondent 37 2 1006
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
hearing 37 2 1007
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
decision to appoint guardian 37 2 1007
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
decision to appoint cont 37 2 1007
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
decision to appoint cont d 37 2 1007
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
court order of appointment 37 2 1009
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
fees and costs 37 2 1008
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
fees and costs cont 37 2 1008
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
public guardian or conservator 37 2 1010
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
public guardian cont 37 2 1015
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
qualification of guardian 37 2 1011
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
clerk s duties 37 2 1011
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
clerk s additional duties 37 2 1014
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
petitions for modification
Petitions for Modification
  • Va. Code § 37.2-1012 establishes procedures for restoration of capacity, modification or termination of the order
duties and powers of guardian 37 2 1020
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
duties powers cont 37 2 1020
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
duties powers cont 37 2 102035
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
duties powers cont 37 2 102036
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
guardian s annual report 37 2 1021
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
guardian s report cont 37 2 1021
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
guardian s report cont 37 2 102139
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
  • $5 filing fee