Our View of the Legislature: Guardianship

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The deadline for legislators to file requests for bills or resolutions was this past Friday, January 17, 2020.  Legislative staff are finalizing those requests and making the proposals public as fast as they can.  dLCV expects that all possible legislation will be publicly available later this week.  Please, if you learn of something affecting the disability community, share it with us!

The mission of the disAbility Law Center of Virginia 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.

Supported Decision Making

Delegate Kay Kory and Senator Dunnavant are offering identical bills to recognize the legality of “supported decision making” in lieu of guardianships.  HB 1321 and SB 585 are the recommendation from the Joint Commission on Health Care.  The bills allow a person with an intellectual or developmental disability to appoint a “supporter” to assist with decision-making.  The bill also requires consideration of less restrictive alternatives before the most restrictive tool, guardianship, is imposed. The House bill is in the House Committee on Health, Welfare and Institutions. It will be heard in the Behavioral Health subcommittee, probably next week.

The Senate bill was re-referred from the Committee on Rehabilitation and Social Services to the Senate Judiciary Committee.  SB 352 (Lucas) also recognizes “supported decision making” and also has been assigned to the Senate Judiciary Committee.  The Senate bills are not yet on any committee agenda.

dLCV strongly endorses all efforts to recognize supported decision-making.  Advocates in the elder rights community express hope that the tool could be extended to elders who need assistance with decision-making.

Here are some developments in other guardianship legislation so far:

HB 304 (Hope) requires a petition for guardianship to list certain identifying characteristics of the person for who guardianship is sought.  Advocates are concerned about the protection of confidential information.  The bill was passed by for the week in House Courts, civil sub.

Delegate Levine is proposing a complex process intended to protect the right of a person who has a guardian to be able to have visitors of their choosing.  HB 862 is the result of the Delegate’s attempts to protect visitation rights over the last two years and is the product of extensive negotiations since the end of the 2019 session.  dLCV believes the bill is thorough and balanced.  Assigned to the House Committee on Courts of Justice; it may be assigned to a subcommittee.

SB 214 (Sutterlien) requires a guardian ad litem to review an IEP when the person in the guardianship proceeding is between 17 and 21.  The bill has been approved by the full Senate.

HB 841 (Murphy) requires the appointment of counsel for the person in the guardianship proceeding, notice to specific family members, payment of attorneys’ fees if a petition is brought in bad faith, and the presence of the person at the guardianship proceeding, if at all possible.

HJ 127 (Roem) asks the Joint Legislative Audit and Review Commission to review how court appointed guardians operate, and especially to review whether there should be established case maximums and protections against abuse.  dLCV believes this request may be motivated by a recent series of articles in the Richmond Times Dispatch, describing questionable conduct by hospital-designated guardians.  The study request will be heard in the House Committee on Rules, which does not have a meeting scheduled yet.

HB 1166 (Wampler) and SB 308 (Stanley) make it a felony for a guardian or conservator to file a knowingly false statement with the court.  SB 261 (Chafin) likewise makes it a crime to do so, but only a misdemeanor.  The bills are in House Courts and Senate Judiciary committees.