January 30, 2022

Virginia’s Legislative Audit and Review Commission Shines Light on Guardianship

by Erica Wood

The full PDF in which this article appears can be found in Bifocal Vol. 43, Issue 3.

Does your state have an independent audit and review committee to conduct program evaluations and oversight assessments?  If so, there are many aging and disability issues to which it might turn attention – including adult guardianship.

In Virginia, a 2020 resolution by the General Assembly resulted in a comprehensive October 2021 report by the Joint Legislative Audit and Review Commission (JLARC) on Improving Virginia’s Adult Guardian and Conservator System, http://jlarc.virginia.gov/landing-2021-virginias-adult-guardian-and-conservator-system.asp .  

The JLARC report was long awaited by advocates and practitioners, including those in the Virginia Supreme Court’s Working Interdisciplinary Network of Guardianship Stakeholders (WINGS).  The report found that in FY20 there were approximately 12,000 adults under guardianship in the state – and that nearly half were under age 45.  Based on court data over five years, the report found that the majority of petitioners are family members; and that most cases result in appointment of a full guardian and/or conservator.

The sweeping JLARC report said that “circuit courts need better information to make the best decisions in guardianship cases,” and that guardians ad litem are critical to providing that information. The report went on to state that most adults under guardianship are served by private guardians, who are not subject to standards or training. It noted that a majority of private guardians are responsible for only one adult, but 11 guardians had a caseload of more than 20 adults. The report also recognized the unmet need for additional services through the state’s public guardianship program.

The JLARC report includes 42 recommendations covering the court appointment process, training and oversight for guardians and conservators, protections for adults subject to guardianship, and the state’s public guardianship program.  Of the 42 recommendations, 23 are legislative – and a flurry of bills and budget amendments is expected for the 2022 General Assembly session.  

This overview highlights five key aspects of the JLARC recommendations – which may prompt ideas about similar proposals in your own state.  In Virginia, a “guardian” makes personal and health care decisions for an adult the court finds unable to do so, and a “conservator” makes financial decisions.  Virginia is different from every other state in that guardians must submit their reports to adult protective services, and conservators must submit their accountings to a court-designated attorney called a commissioner of accounts rather than directly to the court.

How can the role of the guardian ad litem be sharpened?

In Virginia, the court must appoint a guardian ad litem to represent the interests of the respondent (person alleged to need a guardian) in every case.  A guardian ad litem is an attorney appointed to investigate the evidence concerning a guardianship petition.  Judges rely heavily on guardian ad litem reports to give an objective, informed case assessment.  JLARC devotes multiple recommendations to the need for sharpening and clarifying the guardian ad litem duties.  

As in many states, the guardian ad litem is distinct from counsel for the respondent, which in Virginia frequently is not appointed.  The court may appoint counsel if the guardian ad litem believes that counsel is necessary. JLARC recommends that if the guardian ad litem finds counsel is not necessary, the report should include an explanation of the reasoning for this decision – which hopefully would cause a more thorough look at the need for counsel in safeguarding rights.

Similarly, under the Code the guardian ad litem must consider less restrictive options. The JLARC report would give this determination more weight by requiring an explanation in the report of any conclusion that “an alternative arrangement to guardianship or conservatorship is not appropriate.”

Additionally, JLARC recommends that the guardian ad litem report should include information about the suitability of the proposed guardian, as well as the respondent’s assets and income. Moreover, JLARC proposes increased guardian ad litem training and requirements.

Finally, JLARC suggests ways to ensure that guardians ad litem are fully informed -- by requiring banks and financial institutions to provide financial records of respondents at the guardian ad litem’s request; and by developing a process for guardians ad litem to get information about alleged perpetrators from APS complaints. Taken together, these changes could give guardians ad litem an opportunity for more effective input into the guardianship process.

Training and education for guardians and judges

A growing number of states are requiring at least some initial training for both family and professional guardians. Virginia is not among them, and JLARC would change that. JLARC urges that all private guardians and staff who work for them be required to take training within four months after appointment, and that the Department for Aging and Rehabilitative Services develop such training. Similarly, conservators should undergo mandated training, also within four months of appointment.

JLARC also spotlights judicial training. It notes that Virginia judges receive less than an hour of guardianship training when appointed, and there are no ongoing guardianship-specific judicial  training opportunities. JLARC urges the Supreme Court to maintain online training for judges, and the Judicial Conference of Virginia to periodically offer training at its judicial conferences. A further recommendation targets bench book materials for judges. Virginia WINGS is already working on updating the guardianship section of the bench book, with checklists and possibly accompanying bench cards.

The more visits, the less isolation

The more eyes on the adult subject to guardianship, the less likely there will be harmful isolation and opportunities for abuse, neglect and exploitation. 

While the state’s public guardianship program requires guardianship providers to visit the adult once a month, private guardians are required by Code only to “maintain sufficient contact” and visit “as often as necessary.” JLARC found that some guardians visit frequently, while others visit rarely or not at all. JLARC recommends that private guardians be required to visit at least once every three months, and sets out observations the guardian should make.

Visits from family members and friends of the adult’s choosing are just as important as visits from the guardian. While many states have enacted legislation providing for the adult’s right of communication and curtailing guardians’ discretion in restricting such visits, Virginia has not. JLARC concluded that “guardians have too much authority to restrict who can visit or contact adults under guardianship,” but recognized that some restrictions may be necessary; and that “Virginia needs a more formal and transparent process for visitation and contact restrictions with adults under guardianship to better balance the guardians’ authority with the desires of family and friends and the well-being of the adult.” Thus, JLARC recommends a court form for guardians to provide the adult with written notification of any restriction and the specific reasons for the restriction.

In addition, JLARC urges “independent care visits” to ensure quality care from guardians and other providers.  For example, Arlington County recently completed a pilot in which local human services staff conducted independent visits to 40 adults under guardianship to asses their care and needs.  JLARC urges that the state Department for Aging and Rehabilitative Services develop a proposal for conducting independent care visits for a subset of private guardianship cases on an ongoing basis.

Increasing review and accountability

JLARC’s recommendation for independent care visits is one of several approaches the report suggests to bolster guardianship monitoring. Another is the content of guardian annual reports. Guardians must submit annual reports to adult protective services at their local department of social services. The report must be on a standard form that reflects the requirements in the Code.

JLARC finds that the annual guardian reports “are ineffective for overseeing private guardians.”

The report form items are open-ended, such as “a description of the current mental, physical, and social condition of the adult under guardianship and the person’s living arrangements” -- resulting in vague and inconsistent responses that are difficult to assess.  Moreover, the report does not collect some of the information useful for monitoring, such as the names of clinical providers and dates of last visits, and the relationship of the guardian to the individual served. JLARC recommends Code changes to redesign the annual report to include 12 key informational items useful for oversight; and that adult protective services staff in local departments of social services have training on how to review annual reports and identify concerns.

Another key JLARC finding is that “Virginia lacks a centralized complaint process for the private guardianship system.”  Consequently, adults subject to guardianship, their families and advocates don’t know where to turn when things go wrong. JLARC recommends that the Department for Aging and Rehabilitative Services develop and administer a process for receiving complaints against private guardians.  The Department would refer these complaints to a court, state agency or local agency for response – for example, to a local circuit court, adult protective services, the long-term care ombudsman, or the Virginia State Bar.  The Department would track and follow up on each complaint and would require funding for more staff to do so.

An additional JLARC finding concerning oversight is that Virginia does not have a system of periodic review hearings to determine whether the guardianship continues to be necessary and if not, should be terminated; or whether modifications in the order are needed. JLARC recommends that courts hold a periodic review hearing no later than one year after appointment of the guardian and at least once every three years thereafter, unless the court determines at the time of the initial order that such review hearings are not necessary.  That is, the court should decide whether periodic review is needed in each case, and if the court decides it can be waived, should state the reason for that decision.  JLARC found there have been very few cases over the past five years in which the guardianship order was terminated and the adult’s rights were restored.  Periodic review hearings could potentially increase the number of such restorations.

How can the public guardianship program meet the growing need?

While the bulk of the JLARC report focuses on private guardians, it also reviewed Virginia’s robust Public Guardian and Conservator Program. The program, located in the Department for Aging and Rehabilitative Services, serves just over 1,000 adults through 13 local or regional governmental or non-profit providers.  According to regulations, the program has a ratio of not more than 20 clients to every paid full-time staff person.

JLARC stated that the program has effective standards, training and oversight – but requires additional funds to meet the demands of the nearly 700 person waiting list. The report recommends appropriations to eliminate the waiting list.

Further, an unmet needs study mandated by the Code every four years has not been conducted since 2007, due to lack of appropriations. Such a study, as recommended by JLARC, should take into account the need for expanding the overall program capacity, as well as varying needs by geographic region, and should assess the cost of providing the additional services.

Conclusion

A number of states have program evaluation and performance audit offices or commissions.  They are connected through and assisted by the National Legislative Program Evaluation Society (NLPES) of the National Conference of State Legislatures, https://www.ncsl.org/legislators-staff/legislative-staff/program-evaluation.aspx .  Such a commission can provide an objective eye on the strengths and weaknesses of a state’s adult guardianship system, crystalizing paths for improvement. The Virginia JLARC report gives a ready springboard for action by legislators, agencies, advocates and practitioners.  Stay tuned for some positive changes in Virginia guardianship.

Erica Wood was formerly Assistant Director of the ABA Commission on Law and Aging. She retired from the Commission in 2020 and continues to work on law and aging issues, especially concerning guardianship, as well as health and financial decision-making. She is a member of Virginia WINGS; and the Virginia Public Guardianship Board.