Some of Virginia’s most at-risk adults aren’t sufficiently protected by the state’s private guardianship system, according to
a new report from a legislative watchdog agency.
The findings, detailed in a Monday hearing by the Joint Legislative Audit and Review Commission, largely affirm years of concerns from many advocates and family members. A 2019 investigation
by the Richmond Times-Dispatch also detailed numerous faults within the
system, which is subject to little oversight but has broad discretion
to remove the decision-making rights of adults in its care.
“The state’s role is woefully
inadequate, given that these guardians are responsible for some of the
most vulnerable Virginians,” JLARC Director Hal Greer told legislators
at the meeting. “The private system lacks meaningful standards,
requirements or accountability to help ensure that thousands of adults
are being adequately served.”
Like
other states, Virginia developed its guardianship process to help
so-called “incapacitated adults” — those 18 years or older who are found
to be incapable of meeting
their own essential needs. The process begins with a circuit court
petition — which can be filed by an individual or an “entity” —
according to the JLARC report, and judges ultimately decide whether a
guardian will be appointed.
Of
the roughly 12,000 adults under guardianship care, 1,000 are served by
the state’s publicly funded system, which has been described as a
national model. But Kathy Hayfield, commissioner for the Virginia
Department of Aging and Rehabilitative Services, said the $4.5 million
program is already considered underfunded for the adults it serves.
According
to JLARC, nearly 700 people are currently on the waitlist. Eligibility
is limited to adults who are deemed incapacitated, low-income and who
don’t have another individual willing to serve as their guardian.
“The
older term for that was ‘indigent and friendless,’” said Joe McMahon,
JLARC’s project leader for the report. Those strict admission criteria
leave roughly 11,000 Virginians, half between the ages of 18 and 44, to
be served by the private guardianship system.
Unlike the publicly funded program,
though, private guardians receive little oversight and aren’t subject to
either independent monitoring or training and caseload requirements.
Family members and friends can serve as guardians, but so can attorneys
or “organizations,” McMahon said.
The
Richmond Times-Dispatch, for instance, found that VCU Health has filed
hundreds of petitions to remove their patients’ decision-making rights —
a way to free up hospital beds and reduce uncompensated care. Many of
those patients have been assigned to attorneys paid by VCU.
One,
R. Shawn Majette, had up to 120 patients under his guardianship at the
time the story was filed. Similarly high caseloads aren’t unheard of in
the private guardian system. While many guardians only have a single
person under their care, a “small subset” are responsible for more than
20 people, according to McMahon.
“That’s
a median of 33 adults per guardian in this group,” he said. And unlike
the public system, those guardians aren’t required to regularly visit
the adults they serve. The Times-Dispatch found that many of VCU’s
patients were placed in low-rated nursing homes, sometimes against the
wishes of their own families or loved ones.
The
power granted to private guardians is especially problematic given the
lack of oversight by the state, analysts found. Guardianship is often a
“lifelong arrangement,” according to the report, and guardians have wide
latitude to restrict contact with the adults they serve. Often, that’s
done without giving a rationale or explaining the process for appealing
the decision in court.
At the same time, private guardians
aren’t subject to any independent monitoring to ensure they’re providing
adequate care. The bulk of the state’s oversight comes through an
annual reporting form, which is overly broad and not structured to
collect good data, according to the report.
“Its
reliance on open-ended questions enables vague and inconsistent
reporting,” McMahon said. One section, for example, asks guardians to
describe the physical, mental and emotional condition of adults in their
care. JLARC reviewed multiple forms and found many guardians responded
with a single-word answer, such as “good.”
The
limited data makes it difficult to know the extent of possible abuse or
mistreatment within the private guardianship system, the report found.
But there can be perverse financial incentives for taking away an
adult’s decision-making abilities. The court process, for example,
involves an attorney known as a “guardian ad litem,” who’s paid to
investigate the patient’s condition and issue a recommendation to the
court.
Analysts found that many
petitioners repeatedly request the same guardian ad litem for
guardianship cases, potentially creating conflicts of interest.
“The
concern is that a GAL could have financial incentive to reach
conclusions that support what the petitioner wants — which would be to
place someone under guardianship — because they’d be requested again in
future cases,” McMahon said.
And
while the majority of petitioners are friends and family members,
hospitals and other medical facilities — like VCU Health — accounted for
15% of cases within the last five years. The Richmond Times-Dispatch
found that VCU paid a private law firm more than $1.15 million to serve
as guardians for some of their lowest-income and most vulnerable
patients.
Addressing those flaws will likely
require more state funding and serious revisions to the state’s current
reporting requirements. The final report includes 42 different
recommendations for the General Assembly, from establishing a
centralized complaint system through the Department of Aging to
establishing an independent monitoring program.
Periodic
review hearings could also help ensure that guardianship is still an
appropriate arrangement for the adult, according to the report. And
while some of the recommendations addressed potential standards and
training requirements for private guardians, there’s also concern that
overly stringent restrictions could drive caretakers from the program.
The majority of incapacitated adults in Virginia are still represented
by a single guardian — most likely a friend or family member — who often
receive little to no pay, according to McMahon.
“Holding
them to the same standards of the public program — we were afraid that
could really limit the people who are willing to serve in that role,” he
said. One option could be to expand the state’s public program by at
least 700 slots to reduce the size of the waitlist, though there would
likely be additional demand, according to analysts.
Lawmakers,
at least, seemed open to the suggestion. Del. Ken Plum, D-Fairfax, the
legislative chair of JLARC, asked Hayfield to tell the administration
there was “a lot of interest” in further funding the program. Del.
Danica Roem, D-Manassas, said the report “demonstrated the tragically
poor state of oversight of our adult guardianship system” in a joint
statement with Del. Mark Levine, D-Alexandria. Both lawmakers sponsored
the 2020 legislation directing DMAS to conduct the study.
The Department of Aging, too, acknowledged that the program was badly in need of reform.
“This
is something that should not be taken lightly,” Hayfield said. “When an
individual’s decision-making rights are removed, very seldom do they
ever get them back.”
