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Virginia’s private guardianship system lacks “meaningful standards, requirements or accountability” to properly serve the 11,000 Virginians in its care, a state watchdog found, confirming the findings of a 2019 Richmond Times-Dispatch investigation.
Adults subject to a guardianship have had their rights and autonomy taken away by the courts and handed to a state-funded guardian or, more often, a private individual. The Times-Dispatch explored the use of private guardianships by Virginia Commonwealth University Health System, finding that it triggered guardianships to remove poor patients from hospital beds, and sought to have patients under the guardianship of a lawyer whose firm worked for the health system.
A review of more than 250 cases found instances of inadequate care for people under the lawyer’s care, and life-ending decisions that went against family’s wishes — or locked them out altogether. In one case, VCU Health’s lawyer asked the courts to either appoint him guardian or allow the hospital to move a paralyzed patient out on the street.
The watchdog’s review found that 11 private guardians are in charge of a combined 510 people, with one of them responsible for 110 — a number the agency found would make it hard for a guardian to properly oversee care for these individuals.
By contrast, the watchdog found that the state’s public guardianship system — which serves 1,000 people, just 1 in every 12 adults in a guardianship in Virginia — has appropriate safeguards and is working “quite well.”
“Unfortunately, the private guardianship system is not. The state’s role in this system is woefully inadequate, given that these guardians are responsible for some of the most vulnerable Virginians,” said Hal Greer, the staff director of the Joint Legislative Audit and Review Commission.
JLARC presented its findings to a panel of lawmakers Monday, urging them to consider a series of 42 recommendations to improve the private guardianship system and to expand the state’s guardianship program.
Among many shortcomings in the private system, JLARC found that once guardians are appointed by the courts, they operate without “any standards.”
Guardians don’t have a limit on the number of people under their care. They are not required to visit the people under their care to ensure they are being taken care of properly. Lawyers used by VCU Health for guardianship rarely visited the people placed under their control, the Times-Dispatch investigation found. Guardians aren’t required to undergo financial training before taking over a person’s estate. There is no formal system for complaints.
JLARC told lawmakers that the legislature should consider these shortcomings, and add in safeguards such as a visitation requirement for private guardians and required training. The state also needs a centralized system for complaints, they said.
The study was commissioned by lawmakers in 2020 after The Times-Dispatch’s published an investigation by former Times-Dispatch reporter Bridget Balch. Del. Danica Roem, D-Prince William, and Del. Mark Levine, D-Alexandria, proposed the study during the 2020 session.
JLARC also found that guardians have “too much discretion” to limit family and friends from contacting and interacting with the adult under their care without justification. This practice, they said, could open the door to abuse and neglect. Loved ones who want to be involved in caring for an incapacitated adult may have trouble navigating the legal system to fight the decision of the guardian.
Lawmakers should make it more difficult for guardians to restrict visits, including by requiring specific details as to why a restriction is necessary, JLARC said.
The only requirement on guardians is an annual report that includes an update on the well-being of the person under their care, including their physical, mental and emotional condition.
“We reviewed many of these reports. ... Oftentimes, the guardian would provide a one-word answer to each such as ‘good,’” said Joe McMahon, who led JLARC’s study. The report, they said, should include more detail that could be useful to the court or anyone interested.
JLARC also asked lawmakers to consider requiring the courts to review
guardianship cases periodically, arguing that sometimes incapacitated
people can recover and regain their autonomy. Most guardianship cases
now are effectively permanent.
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