Our View of the Legislature: Guardianship

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Supported Decision Making

A House subcommittee will begin to look at a proposal for supported decision making next week.  HB 1321 will be in the Behavioral Health subcommittee of HWI, which meets on the 27th starting at 8:30.  The subcommittee meeting will be on the 4th floor of the Pocahontas Building, at 9th and Main.  If you plan to attend this meeting, please remember to allow sufficient time to get through security.

Delegate Kay Kory’s bill (HB 1321) recognizes the legality of “supported decision making” in lieu of guardianships.  HB 1321 and an identical Senate bill being offered by Senator Dunnavant (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, the Behavioral Health subcommittee.

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.  One group, however, comprised of lawyers who act as guardians, opposes this legislation.

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.  A group of lawyers who act as guardians oppose this bill.  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. Assigned to the House Committee on Courts of Justice; it may be assigned to a subcommittee.

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.

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.