Our View of the Legislature: Guardianship

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We are now in the post cross-over stage of the legislative session, where each house decides on bills that began on the other side.  If there are similar bills that came out of both houses, they are likely to act very quickly on them.  So, while there are fewer bills left to be considered, the ones that remain may move very fast.  Please reach out to us if there is something we need to know about!

Here is where some important guardianship-related bills stand:

Supported Decision Making

At the beginning of the session, there were three bills that addressed supported decision making.  One of the bills has been carried over to 2021, one bill was stripped of all references to supported decision making but was allowed to go forward with other changes to our guardianship laws, and one bill has passed the Senate.

Delegate Kay Kory’s bill (HB 1321) was carried forward to 2021 in the House committee on Health, Welfare and Institutions.   It would have created a very formal framework to recognize the legality of “supported decision making” in lieu of guardianships.  It was recommended by the Joint Commission on Health Care but was opposed by the state bar group that does guardianships.

Senator Dunnavant’s bill (SB 585) started out as identical to Kory’s HB 1321, but the Senate Committee on the Judiciary heavily amended the bill to remove all recognition of Supported Decision Making.  The bill now contains some amendments to the guardianship laws in Virginia, including strengthening requirements that courts must consider less restrictive alternatives before imposing a guardianship and that guardians must encourage the person to participate in their own decision making.  The bill charges the Department of Behavioral Health with convening a work group to study Supported Decision Making.  SB 585 was approved by the full Senate and will now be considered by the House Committee on Courts of Justice.

One bill remains alive.  SB 352 (Lucas) also recognizes “supported decision making” but with a much less complicated mechanism than either HB 1321 or SB 585.  The bill has been approved by the full Senate.  We expect that it will be assigned to the House Committee on Courts of Justice.

Other Guardianship legislation still active:  

SB 1072 (Mason) prohibits a court from appointing a lawyer or firm as guardian if that firm also represents the petitioner seeking guardianship or in any other matter.  This bill is in response to media articles describing questionable practices by hospitals, particularly VCU Health Systems, seeking to discharge patients against their will to nursing homes.  The Senate Judiciary Committee amended the bill to allow a court to appoint a guardian from the same firm as the petitioning attorney only “for good cause shown.”  The bill was approved by the Senate and now goes to the House Courts of Justice committee.

HB 304 (Hope) requires a petition for guardianship to list certain identifying characteristics of the person for whom guardianship is sought.  The bill was amended to address confidentiality concerns and was approved by the House.  We expect it to be assigned to Senate Judiciary.

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 and will be considered by House Courts of Justice.

HB 1166 (Wampler) and SB 308 (Stanley) would have made it a felony for a guardian or conservator to file a knowingly false statement with the court.  Wampler’s bill was amended to make it only a civil offense.  Stanley’s SB 308 was incorporated into Senator Chafin’s SB 261.  SB 261 originally made filing false statements a misdemeanor, but it was amended to make it only a civil offense.   HB 1166 and SB 261 are now similar.  Both have been approved by their respective houses and should be assigned to the House Courts and Senate Judiciary committees.

Defeated Guardianship Legislation

HB 862 was designed to enhance the rights of someone under a guardianship to have visitors of their own choosing.  HB 862 contained a process by which a guardian could block visitors, but with a presumption in favor of having visitors.   The portion of the state bar that does guardianships opposed the bill.  Also, the public guardian program, while supporting the concept, noted that process would have significant cost to the program, requiring an amendment to the state budget.  In order to avoid the costs to the state budget, when the bill came to subcommittee, Delegate Levine removed those with a public guardian from its protection.  dLCV and others then opposed the bill, and it was tabled in the Civil subcommittee of House Courts of Justice.

HB 841 (Murphy) would have required 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. The bill was incorporated into Delegate Levine’s HB 862 (above) and was left in committee.

HB 1206 (Tran) would have allowed a Court to charge the costs of a guardianship proceeding to the Commonwealth for good cause.  The bill was defeated in House Appropriations.

HJ 127 (Roem) asked 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.  This request may have been motivated by a recent series of articles in the Richmond Times Dispatch, describing questionable conduct by hospital- designated guardians and also addressed by Senator Mason’s SB 1072.  The study request was tabled in the House Committee on Rules.

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.