Let’s Talk About Guardianship

By Gillian Dressel, VCU Social Work Intern

Guardianship is a legal process in which the court orders and appoints an individual or agency to make decisions on behalf of a person found to be incapacitated. At dLCV, we advocate for less restrictive options, such as supported decision making or the use of a power of attorney, to preserve the autonomy, dignity, and rights of the individual. Alternatives to guardianship should always be considered first; this is because guardianship is the most restrictive form of legal intervention for individuals in Virginia who need assistance in making decisions. This article briefly explores my experience working with a client at dLCV looking to have their guardianship terminated.

During my time as an intern at dLCV, I had the honor of meeting a client who requested our services in getting her guardianship removed. Often, a family member or friend is named as the guardian, though sometimes the court may also appoint a public guardian or a third-party agency. In this case, the guardian is the client’s mother, and the client reported that their relationship has been strained for several years. At the request of her mother, our client has been admitted to a state hospital for approximately 7 years. She further disclosed that she and her mother have had little to no communication with each other since she has been at the hospital. This shocked me–how could someone have their rights restricted under guardianship without having a working relationship with that guardian?

Currently, the only regulatory system set in place for guardianships in Virginia is through the Public Guardianship Program, which is monitored by the Department of Aging and Rehabilitative Services (DARS). Examples of public guardianship regulations include annual reporting, training requirements, and visitation requirements. According to DARS, there are approximately 16,000 Virginians in a guardianship and only about 7% of the individuals have a public guardian. This means that approximately 93% of guardianships in the state receive little to no oversight or regulatory monitoring. Section § 64.2-2009.1 of the Virginia Code, court-appointed guardianships must attend review hearings periodically to assess if the guardianship is still necessary and if the respondent (the individual found incapacitated) has regained capacity. This addendum is not retroactive and only applies to guardianships appointed after July 1, 2023.

Therefore, our client does not benefit from this legislation, and she must file a formal petition to get her guardianship reviewed and potentially terminated.

Next Steps:

Next, dLCV will file a petition to the court and obtain the client’s legal records. We anticipate that the guardian will dispute the petition and seek legal counsel to try and prove that the guardianship is still necessary. Our client will go through a series of capacity evaluations to determine her ability to perform certain tasks and make decisions. Capacity evaluation reform is a priority for dLCV, and we are working with clinicians and the Commonwealth towards consistent, comprehensive, and unbiased capacity evaluations that avoid placing individuals into the most restrictive guardianships. If dLCV wins the case, and our client’s guardianship is removed, she will need to utilize supported decision-making when issues arise or when guidance is needed, as she will no longer have someone making decisions for her. This could be difficult for our client to adjust to, but the hospital should help her process the change and help her transition to a new environment.

Final Thoughts:

People who have been placed under guardianship have been shown to exhibit symptoms of “low-self-esteem, passivity, and feelings of inadequacy and incompetency” (Martinis et al. (2023). I found this to be particularly true for our client, who stated that her experiences under guardianship have been negative and disheartening. She referenced Patrick Henry’s infamous quote “give me liberty or give me death” to signify the loss of her personal autonomy. When she learned that dLCV would represent her case, she expressed extreme gratitude. It was a moment that I will never forget. There, standing before me, was someone who, despite having the odds stacked against them, never lost hope. Her perseverance, self-advocacy, and kindness were unwavering, and I will forever be grateful that I met her.

Definitions

Virginia’s Code, § 64.2-2000, defines a guardian as a court-appointed person who is “responsible for the personal affairs of an incapacitated person, including responsibility for making decisions regarding the person’s support, care, health, safety, habilitation, education, therapeutic treatment, and, if not inconsistent with an order of involuntary admission, residence.”

An incapacitated person (e.g., respondent) is defined as an adult “who has been found by a court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to:

• (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian
• (ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator.”

How is guardianship appointed?

First, a petition is filed to the court, which must document all information detailed in § 64.2-2002. Once filed, the court will appoint an attorney or guardian ad litem (GAL), to advocate for the interests of the respondent. According to § 64.2-2003, the GAL’s duties include visiting the respondent, advising the respondent of their rights and need for counsel, investigating the petition, reviewing evidence, evaluating alternatives, and much more. The role of the GAL is a key part of the court’s process in determining the fate of the petition.

How is one found incapacitated?

According to § 64.2-2005, a separate addendum is then filed including an evaluation report completed by a licensed professional(s) detailing the respondent’s capacity or lack thereof, including:

1. “A description of the nature, type, and extent of the respondent’s incapacity, including the respondent’s specific functional impairments;
2. A diagnosis or assessment of the respondent’s mental and physical condition, including a statement as to whether the individual is on any medications that may affect his actions or demeanor, and, where appropriate and consistent with the scope of the evaluator’s license, an evaluation of the respondent’s ability to learn self-care skills, adaptive behavior, and social skills and a prognosis for improvement;
3. The date or dates of the examinations, evaluations, and assessments upon which the report is based; and
4. The signature of the person conducting the evaluation and the nature of the professional license held by that person.”