Virginia: Levine’s guardianship bill faces unexpected last-minute objection from state bar lawyer

By Bridget Balch

Delagate Mark Levine

For the third year, Del. Mark Levine, D-Alexandria, proposed a bill intended to strengthen family members’ and loved ones’ rights to visit adults who are under legal guardianship. After spending a year working with numerous stakeholder groups to refine the bill into something everyone agreed upon, he was surprised when a lawyer from the Virginia Bar Association stood in opposition during the bill’s subcommittee hearing.

Levine’s first attempt at the bill was inspired by a constituent, Mike Jacobs, who came to Levine with a story about how he had been unfairly banned from seeing his longtime partner, Jane Lopez, who had Alzheimer’s disease, by an attorney serving as Lopez’s legal guardian, Levine said.

Shannon Laymon-Pecoraro

Shannon Laymon-Pecoraro, an elder attorney representing the Wills, Estates and Trusts Section of the state bar, objected to several parts of the bill. Among them is a provision that would place greater emphasis on the guardian ad litem determining whether any conflicts of interest exist among the parties in the guardianship case. A guardian ad litem is an attorney appointed by the court to investigate a guardianship case and represent the allegedly incapacitated person’s best interests. 

“It’s our position that the guardian ad litem is not an ethics expert and it’s the attorneys’ job themselves to determine whether or not there’s an ethical issue,” said Laymon-Pecoraro, who asked that the bill be delayed another year. “We have proposed that because this is a major overhaul and the bill has continued to evolve rapidly over the course of the last few months, that we not act in haste and that instead that we continue to work with Del. Levine.”

Levine said that provision in the bill was intended to addresses issues like those reported in the Richmond Times-Dispatch three-part investigative series into guardianship that revealed that VCU Health System and other health care providers were taking low-income patients to court and requesting that their own attorney be appointed the patient’s guardian. The guardianship orders gave the hospital’s attorney control over the patient’s medical decisions and finances. The series also found that the same guardian ad litem was employed in nearly 90% of all of cases over the past six years and that her fees were paid by VCU Health. 

“Hospitals are sometimes trying to get rid of difficult patients — difficult because they cost the hospital a lot of money — so they get their guardian and their guardian ad litem and they all pay these people and then no one’s there to represent the interest [of the patient],” Levine said, in defense of the provision. “The point is so the judge knows who’s paying the fees.”

He also referenced Yolanda Bell, a Manassas resident who attended the subcommittee hearing to advocate for the bill. Her sister was put under guardianship at the request of Inova Health System and she later faced visitation restrictions imposed by her sister’s guardians.

“As a family of faith, our religious beliefs are very important to us, and because of the severe restrictions imposed by the guardians, even clergy were turned away from my sister,” Bell told the subcommittee. “She was not able to receive the last rites of the church.”

Laymon-Pecoraro also objected to a provision in the bill that would allow a close relative or intimate partner to request a court-appointed lawyer on behalf of the allegedly incapacitated person. Under current law, the incapacitated person has a right to a court-appointed lawyer, but only if requested. And it is up to the guardian ad litem to determine whether a lawyer is needed even if the patient requests one.

“The right to counsel is a due process right of the respondent and not that of anybody else,” Laymon-Pecoraro said.

The Times-Dispatch investigation found that the guardian ad litem in the majority of health care provider-sponsored guardianship petitions in Richmond almost never recommended a lawyer for the patient, and on at least one occasion, said she did not believe it was necessary even though the allegedly incapacitated person requested it.

Levine expressed frustration that the bar’s concerns were not brought to him before the subcommittee meeting and said that the latest draft of the bill — draft 23 — addresses the concerns Laymon-Pecoraro had detailed.

“I can give a point-by-point rebuttal to every single — every single issue she raised is addressed in the substitute because I have been working with [the Virginia Academy of Elder Law Attorneys] and AARP and the National Guardianship Association and Alzheimer’s [Association],” Levine told the subcommittee members.

Laymon-Pecoraro said that the Wills, Trusts and Estates Section of the state bar association had not attempted to discuss the legislation with Levine and that the section members had only been able to discuss the bill the previous Friday.

Del. Patrick Hope, D-Arlington, who is a health care lawyer, said that he had mobilized elder law attorneys to help stop Levine’s guardianship bill during the last legislative session and that he was disappointed that concerns with the bill still hadn’t been addressed.

Levine said that Virginia Bar Association representatives were involved with discussions around the bill and that he had incorporated all of their suggestions.

Brad Brickhouse, an elder law attorney who opposed Levine’s bill last year, said he supports the version presented to the committee.

“I still disagree with Del. Levine on pretty much everything else, but this bill is OK,” Brickhouse said. “I can’t think of any group that wasn’t at the table.”

The subcommittee directed Levine and Laymon-Pecoraro to work on a compromise in time for the bill to be heard before the full House Courts of Justice Committee on Friday.

“My impression from the way we do things here though is we kind of like to kick everybody out and tell them to come back when they’ve worked their differences out,” said Del. Marcus Simon, D-Fairfax, a member of the subcommittee. “Perhaps this can be ready by Friday, if not it can go by for the session.”

Levine said he was willing to hash out the details with Laymon-Pecoraro on Wednesday night after the subcommittee meeting, but that she did not have authority to negotiate on the state bar’s behalf. Instead, she directed him to Tom Yates, chair of the legislative committee of the bar’s Wills, Trusts and Estates Section.

Yates and Alison Zizzo, who represented the Virginia Bar Association in stakeholder meetings to discuss Levine’s bill, did not respond to questions sent Thursday.

Another House subcommittee agreed Wednesday to send a letter to the Joint Legislative Audit and Review Commission, the state’s oversight arm, requesting a study of guardianship and ways to prevent abuse, which was proposed by Levine and Del. Danica Roem, D-Prince William.

 

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Virginia: Levine’s guardianship bill faces unexpected last-minute objection from state bar lawyer