Our View of the Legislature: Guardianship

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As cross-over draws closer, guardianship-related bills will be of special interest to dLCV.  The House and the Senate have taken very different approaches to a series of recommendations from the Joint Legislative Audit and Review Commission concerning Virginia’s Guardianship and Conservatorship laws.  The JLARC report can be accessed by clicking here:

The Senate adopted many of the recommendations in one comprehensive bill, brought by Senator McPike. SB 514 was approved by the Senate Judiciary committee, amended by Senate Finance, and amended on the Senate floor before being approved this past Friday. The amended version establishes a deadline of July 2023 for the development of trainings for guardians and January 1, 2025 for guardians to complete the training. The bill enhances an individual’s right to counsel and right to have visitors of their choosing. The bill establishes more rigorous oversight of guardianships by the courts and by an entity to be designated by the Department of Aging and Rehabilitative Services, as well as other improvements to the state’s guardianship code. SB 514 now moves to the House side, where we expect substantial amendments

In the House, the issues are being considered in a series of bills and have reached different outcomes:

HB 634 (Roem) would have required a guardian to visit the incapacitated person at least once very three months to make certain observations. HB 634 was heavily opposed by the Hospital Association, fearing that it would limit their ability to locate guardians to transfer people out of hospitals against their will. A House subcommittee of Courts of Justice converted the bill into a “workgroup,” and specifically added dLCV to the workgroup. As a workgroup only bill, HB 634 was approved by the full House and now moves to the Senate.

HB 623 (Hudson) requires the guardian ad litem to notify the court promptly if the person who may be subject to the guardianship requests counsel. Current law only requires it if the GAL believes it is necessary. The bill was approved by the full House and now moves to the Senate.

HB 643 (Roem) sets conditions for periodic reviews of guardianship orders. The bill was approved by the House Courts of Justice committee but was tabled in House Appropriations.  The Department of Aging and Rehabilitative Services estimated that it would cost the public guardian program an additional 1.4 million dollars each year, without any explanation for the price tag. It is a cost that seemed greatly inflated to many advocates.

HB 1207 (Roem) establishes a training program for guardians and made changes to the contents of the guardian’s annual report. The House committee on Health, Welfare and Institutions approved the bill, but it was tabled in House Appropriations, with a price tag of less than $200,000.

HB 1212 (Glass) provides for enhanced notice requirements in the filing of a petition for guardianship. This bill was approved by the full House and now moves to the Senate.

HB 1260 (Roem) creates a process for when a guardian can restrict visitors for an incapacitated person, which lean towards supporting the right of a person’s visitation rights. House Courts of Justice approved the bill, but it was tabled in House Appropriations, with an indeterminate price tag.

HB 94 (Head) would have created an Ombudsman for the public guardianship program, located in the Department of Aging and Rehabilitative Services. Delegate Head withdrew his bill, based in part on objections from DARS.

One bill that is still in play is unrelated to the JLARC study:  SB 302 (Deeds) was approved by the Senate Judiciary committee this morning. SB 302 started out as a bill that would allow a physician to declare someone permanently incapacitated prior to age 18, making the parents permanent natural guardians. Although it was officially patroned by Senator Deeds, Senator Edwards is the actual sponsor of the bill. Advocates from a wide variety of organizations objected to the original bill, which caused Senator Edwards to amend it to align with the Health Care Decision Making Act. Although it is essentially redundant of other parts of the code, the proposal no longer violates constitutional due process requirements.

Our mission is to advance independence, choice and self-determination; protect legal, human and civil rights; and eliminate abuse, neglect and discrimination of people with disabilities through zealous and uncompromising legal advocacy and representation. The disAbility Law Center of Virginia is available to educate policy makers about the potential impact of legislative proposals and budgetary considerations. Please let us know of any legislative proposals or budget issues that you think we should be following. Contact us at info@dlcv.org or by calling 1-800-552-3962 or 804-225-2042.