Virginia Guardianship Resources.

Virginia Guardianship Statutes

Chapter 20 (Appointment, Duties)

Chapter 21 (Interstate Guardianship Rules)

Reporting requirements for Virginia guardians, Va. Code § 64.2-2020 (B):

B. The annual report to the local department of social services shall include:

1. A description of the current mental, physical, and social condition of the incapacitated person, including any change in diagnosis or assessment of any such condition of such incapacitated person by any medical provider since the last report;

2. A description of the incapacitated person’s living arrangements during the reported period, including a specific assessment of the adequacy of such living arrangement;

3. The medical, educational, vocational, social, recreational, and any other professional services and activities provided to the incapacitated person and the guardian’s opinion as to the adequacy of the incapacitated person’s care. The information required by this subdivision shall include (i) the specific names of the medical providers that have treated the incapacitated person and a description of the frequency or number of times the incapacitated person was seen by such providers; (ii) the date and location of and reason for any hospitalization of such incapacitated person; and (iii) a description of the educational, vocational, social, and recreational activities in which such incapacitated person participated;

4. A statement of whether the guardian agrees with the current treatment or habilitation plan;

5. A statement of whether the incapacitated person has been an alleged victim in a report of abuse, neglect, or exploitation made pursuant to Article 2 (§ 63.2-1603 et seq.) of Chapter 16 of Title 63.2, to the extent known, and whether there are any other indications of abuse, neglect, or exploitation of such incapacitated person;

6. A recommendation as to the need for continued guardianship and any recommended changes in the scope of the guardianship;

7. The name of any persons whose access to communicate, visit, or interact with the incapacitated person has been restricted and the reasons for such restriction;

8. A self-assessment by the guardian as to whether he feels he is able to continue to carry out the powers and duties imposed upon him by § 64.2-2019 and as specified in the court’s order of appointment pursuant to § 64.2-2009;

9. Unless the incapacitated person resides with the guardian, a statement of the frequency and nature of any (i) in-person visits from the guardian with the incapacitated person over the course of the previous year and (ii) visits over the course of the previous year from a designee who is directly supervised or contracted by the guardian, including the name of the designee performing such visit. If any visit described in this section is made virtually, the guardian shall include such information in the annual report;

10. If no visit is made within a 120-day period, the guardian shall describe any challenges or limitations in completing such visit;

11. A general description of the activities taken on by the guardian for the benefit of the incapacitated person during the past year;

12. Any other information deemed necessary by the Office of the Executive Secretary of the Supreme Court of Virginia or the Department for Aging and Rehabilitative Services to understand the condition, treatment, and well-being of the incapacitated person;

13. Any other information useful in the opinion of the guardian; and

14. The compensation requested and the reasonable and necessary expenses incurred by the guardian.

                Who pays?

Not the Commonwealth, which refuses to permit any deduction from income to cover these expenses for Medicaid residents.

Although the law is clear that the guardian is not required to spend his funds for the ward, woe betide the hapless guardian who is not bullied into spending his own funds to do this (even though the Virginia Code is clear that he is not required to expend personal funds for the ward), as the Commonwealth may seek forfeiture of his mandatory bond. 

Virginia Involuntary Civil Commitment and Guardianship

Involuntary adult mental health treatment is completely different from guardianship.

Just because an adult has been adjudicated an incapacitated person doesn’t mean that the guardian can consent to mental health treatment when the incapacitated person objects, with one exception.

Involuntary mental health treatment requires process pursuant to established civil commitment statutes unless the circuit court authorizes the guardian to effect involuntary of compliance with Va. Code § 64.2-2009 (C) and Va. Code § 37.2-805.1 (B).  The court may confer this authority in the original order of guardianship or the guardian can petition for a supplemental grant at any time during the guardianship.

The Virginia Public Guardian and Conservator Program
for Indigent, Incapacitated Virginians

The Virginia Public Guardian and Conservator Program is administered by the Virginia Department of Aging and Rehabilitative Services (DARS).

The program is established by statute and governed by regulations.

Virginia law (VCA § 51.5-149 (A)) states that the program exists “to ensure that the protection and assistance of a guardian or conservator are available to all incapacitated persons in the Commonwealth,” and charges DARS to “(a) facilitate the creation of local or regional programs to provide services as public guardians or conservators and (b) fund, coordinate, administer, and manage such programs.” (Emphasis supplied).

The applicable Virginia regulation, 22VAC30-70-20. Introduction and purpose (A), reinforces the primacy of ensuring that a public guardian be available to all indigent Virginians, stating that the “General Assembly declared that the policy of the Commonwealth is to ensure the appointment of a guardian or conservator to persons who cannot adequately care for themselves because of incapacity to meet essential living requirements where (i) the incapacitated person is indigent, and (ii) there is no other proper and suitable person willing and able to serve in such capacity.”

DARS describes the Program as “Virginia’s public safety net [for] … adults who are incapacitated, indigent, and in need of someone to help them make medical, financial, or daily living decisions, but who have no suitable person to serve as their guardian.”

Does the Virginia Public Guardian and Conservator Program (through DARS) meet its statutory duty and fulfill Virginia’s express legislative policy to ensure the protection and assistance of a guardian or conservator are available to all incapacitated persons in the Commonwealth?

What does ensure mean?

• Because the word it is not defined in the statute, judicial construction of the word starts with the commonly accepted meaning.  In common usage, it’s defined as “to make sure, certain, or safe : GUARANTEE.”
• Cases (not in Virginia) have followed this light.

In this case, the reference to the presently-existing constitutional right to freedom of religious expression is not misleading because the summary statement expressly states that the purpose of the proposed amendment is to ensure that right. The word “ensure” means “to make sure, certain, or safe: guarantee.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 756 (1993). Thus, the summary statement clearly indicates that the purpose of the proposed amendment is to make certain, to safeguard, or to guarantee the right of Missouri citizens to express their religious beliefs without infringement.” Coburn v. Mayer, 368 S.W.3d 320 *; 2012 Mo. App. LEXIS 815 **; 2012 WL 2122226 (Court of Appeals of Missouri, Western District).

[T]he proper standard under this statute hinges on the word “insure.” The statute commands responsible authorities to “establish procedures . . . to insure that requests for government [**21] data are received and complied with in an appropriate and prompt manner.” Minn. Stat. § 13.03, subd. 2(a) (emphasis added). The Data Practices Act does not define the term “insure.” In the absence of a definition in the statute, we often look to dictionary definitions to determine the plain meaning of words. Larson v. Nw. Mut. Life Ins. Co., 855 N.W.2d 293, 301 (Minn. 2014). “Insure” is commonly defined as “[t]o make sure, certain, or secure,” The American Heritage Dictionary of the English Language 911 (5th ed. 2011), and “considerabl[y] overlap[s] . . . [with] the meaning and use of . . . ensure,” The New Oxford American Dictionary 881 (2001). Ensure means to “make certain that (something) shall occur or be the case” and “make certain of obtaining or providing (something).” The New Oxford American Dictionary 566.  Webster v. Hennepin Cty., 910 N.W.2d 420 *; 2018 Minn. LEXIS 180 **; 2018 WL 1832983 (Supreme Court of Minnesota, 2018).

Public Capacity, 6-12 Month Waiting List, 2020 Budget in Special Session with Zero Increase in Anticipated Slots:
HOW and WHY? 

Because the program is required to report to the General Assembly every two years, the statistics speak for themselves.

DARS presently reports that the program can serve 1,049 persons.

However, more than half of the capacity – all but 457 of the “slots” – are pre-allocated to state agencies.  Pre-allocated slots are unavailable to anyone else. Executive Summary, 2020 Report, p.6.

Many open slots remain unfilled for months.  As of June, 2019, of all open slots 47 – slightly more than 9 percent – of the actually assigned spaces were not filled.  The 2020 Report states that this is in part due to “in-process” filings, and implies an apparent oversupply in one or more localities despite the overall waiting list. Chart, 2020 Report, p.7.  There is no published regulation or policy by which vacant, unused slots in one jurisdiction can be assigned to fill a need in another, meaning that there are eligible Virginians who are foreclosed from available services because they live in the wrong ZIP code.

According to the 2020 Report, 52% of persons accepted  in the program (100 in all of 2017, 80 in all of 2018, and 21 through June 30, 2019) had a waiting time of between six and twelve months.

However, the actual wait time is much longer, and no public record exists for its measure.

HOW can this be?

The wait time reported by DARS only starts after a mandatory screening by the local multidisciplinary panel(MDP) (22VAC30-70-30 (C)(2) has accepted and offered the person a place in the program:

“The average length of time between the date the person was accepted for a public  guardianship slot [one of the 457] and the date the court order was entered was four months. This does not include the period between the date on which the local public guardian program received the referral from a community source and the date the referral was accepted by the local guardianship provider’s MDP.” 2020 Report, p.11. See “Mechanics,” below.

The 2020 report states the average overall wait time between referral acceptance and slot assignment was 6 months.  Table, 2020 Report, p.11.

No report exists for the average time consumed from the initial community request “identif[ying] a person who needs guardianship services” and the time of notification that the local program accepts (or rejects) the applicant.  See “Public Mechanics,” items 1 and 2, below.

WHY is this?

 The Public Guardianship Program allocates most of its 1,409 slots to state agencies, many of them specifically for mentally ill persons.

Why does the Commonwealth devote the majority of the Public Guardianship slots to state agencies when there were 684 persons waiting on lists as of June 30, 2021, with more than 500 of these segregated behind preferred state agency clients?

Consider just one state agency ahead of ordinary Virginians, the Virginia Department of Behavioral Health and Developmental Services (DBH). DBH operates the Commonwealth’s public mental health hospitals the agency, the Virginia Department of Behavioral Health and Developmental Services.

It’s the best agency to analyze because it’s the big dog in the group, with “funding for DBHDS-referred clients accounts for 59 percent of the Program’s funding for Program slots. Fifty-three percent of the Program slots are reserved for individuals referred by DBHDS.”

Adults between 22 and 65 years of age cannot qualify for federal funds to pay the costs of their care while in state mental hospitals.  Medicaid refers to these hospitals as Institutions for the Mental Disease (IMD), click here, here and here.

Seriously mentally ill adults in this age group are often admitted to IMDs.

Virginia states expenses for room and board per patient in an IMD is at least $23,864 per month. Click here for all state hospitals.  Examples: CSH (26,041), NOVA ($30,872), and PGH (30,872, for persons who are all at least 65 years of age).

Virginia pays 100% of these costs except in the vanishingly rare case of private insurance.

Neither Medicare nor Medicaid (a jointly funded program between Virginia and the federal government) pays anything for these expenses.

In contrast, were the same patient discharged to a nursing home, they could almost universally be approved for Medicaid and a public disability benefit from the Social Security Administration.

But they need a guardian to make the arrangement.

Adults who access guardians to discharge them from these IMD’s to Virginia nursing homes can therefore qualify for Medicaid if they are disabled or over the age of 65.

The Governor calculates the average monthly cost of most nursing homes in Virginia as $6,422.  It is $9,032 per month in Northern Virginia.

The rate which Medicaid pays is significantly lower, with NO “total reimbursement rate” of any monthly nursing home equal to or exceeding $8,821.

For every incapacitated adult on Medicaid whose reserved slot public guardian discharges the adult from an IMD to a Virginia nursing home, Virginia’s average monthly expense drops from at least $23,864 to not more than $9,032 (in NOVA), and on average at the highest Medicaid facility rate, about $8,800.

That’s all before Medicaid federal and state cost sharing is applied.

For every such patient who becomes a nursing home resident and who qualifies as disabled or is 65 years of age or older, Medicaid will pay. When Medicaid pays, federal dollars pay about 63% of the monthly cost.

Applying averages, for every non-Medicaid eligible incapacitated adult in an IMD transferred to a nursing home as a Medicaid recipient, Virginia’s share of payment plummets from 100% of at least $23,864 to not more than $3,256.00 per month. That’s  an average savings of about $20,000 per month.  Considering that the monthly cost of each guardianship slot is $358.18 (click here for 2022 VPG report for its annual budget, and here for total slots), that is a 55:1 return for preferring state agencies over ordinary citizens.

2024 Report (January, 2024).

Facts from the  Report and its Executive Summary:

• The Program in 2024 can serve no more than 1,349 persons.
• At the end of December, 2023, 389 people were on the the VPG wait list among the 12 contracted providers.  Virginia shifts the financial burden of guardianship services to private hospitals while reserving more than a third of the slots to reduce patients in public hospitals; one provider, asserted as unique, is “the private guardian for a significant number of people referred by community hospitals in order to facilitate discharge. If the individual is indigent, the hospital pays the fee for a limited time,” after which time the provider “may place the individual on its Unrestricted public guardianship waitlist. Because of the need to get a guardian in place quickly, community hospitals do not normally make referrals of individuals awaiting discharge to public guardianship Providers.”

Public Mechanics; Local Provider Listings.

DARS contracts with specific providers for all jurisdictions.

DARS maintained list of local public guardian service providers (2-12-23).

The local provider staffs the appointed guardian / conservator and is subject to DARS oversight.

The DARS website describes the process as follows as of February 12, 2023:

“The steps to obtain a guardian through the Virginia Public Guardian & Conservator Program are:

1. A local referral source identifies a person who needs guardianship services. This referral source may be an adult care facility, an Adult Protective Services office, a local Community Services Board, a hospital, or other person or organization that deals with people who are indigent or incapacitated.
2. The referral source contacts the local public guardian service provider (LPGSP) for the geographic area where the incapacitated person resides. Here is a list of the local public guardian service providers.
3. The referral source completes the referral form received from the LPGSP. The form is designed to gather factual information needed to ensure the incapacitated person meets the statutory requirements for public guardianship and that the LPGSP is able to effectively serve as guardian.
4. If the person is accepted by the LPGSP, the referral source engages an attorney to request a capacity and guardianship hearing before a Virginia Circuit Court pursuant to Virginia Code Section 64.2-2000 et. seq.
5. If the Circuit Court finds that the person is incapacitated and indigent the LPGSP is suggested as a suitable guardian as long as no other suitable person can be identified.
6. The Circuit Court makes the appointment and the LGPSG takes over as guardian for the incapacitated person.”

The 2024 Report:

• makes no reference to the average time Providers take to accept or reject a proposed participant.   No regulation sets a time limit in which a Provider must make a decision.
• makes no reference to the basis upon which a Provider may simply refuse an otherwise eligible participant, nor any process to challenge a denial based upon a professed inability to meet the referred person’s needs. 
• omits discussion of the practical problems involved in securing financial and medical data when the potential participant is incapable of HIPAA and bank / financial company authorizations necessary to provide the detailed financial and medical information VPG requires in pages 3, 4, and 5 of the mandatory referral form.  

Public Guardianship Referral Form

While the local agencies listed below with their service areas are responsible for running their own waiting lists, a uniform referral form for the entire Commonwealth to be added to the waiting list.  The form is at this link as of 2-27-2023.  The Contractor List published as of 1-1-23 is here.

2020 Special Session Budget Links;
No Additional Funding for Public Guardianship Unrestricted Slots

2020 Virginia Budget Shortfall

Budget Bill – HB5005, Item 344 (House)

A. 1. Out of this appropriation, $240,757 the first year and $240,757 the second year from the general fund shall be used to administer and oversee public guardianship programs and for no other purpose.

2. Of this amount, $88,350 the first year and $88,350 the second year shall be used to support the administrative costs associated with serving individuals pursuant to interagency agreements for the provision of public guardianship services between the Department of Behavioral Health and Developmental Services (DBHDS) and the Department for Aging and Rehabilitative Services.

B. Out of this appropriation, up to $5,000 the first year and $5,000 the second year from the general fund shall be provided to support activities of the Virginia Public Guardianship and Conservator Program Advisory Board, including but not limited to, paying expenses for the members to attend four meetings per year.

2020 Budget Bill – SB501, Item 340 (Senate)

B.1. Out of this appropriation, $1,726,733 the first year and $1,726,733 the second year from the general fund shall be provided to support local and regional programs of the Virginia Public Guardian and Conservator Program. This funding is estimated to provide 457 client slots the first year and 457 client slots the second year for unrestricted guardianship services.

2. Out of this appropriation, $125,500 the first year and $125,500 the second year from the general fund shall be used to provide services through the Virginia Public Guardian and Conservator Program for individuals with mental illness or intellectual disability (ID). This funding is estimated to provide 40 client slots each year for guardianship services for individuals with mental illness or ID.

3. Out of this appropriation, $1,970,600 the first year and $1,970,600 the second year from the general fund shall be used to provide services through the Virginia Public Guardian and Conservator Program for individuals with intellectual disabilities (ID) and developmental disabilities (DD). This funding shall be expended pursuant to an interagency agreement between the Department of Behavioral Health and Developmental Services (DBHDS) and the Department for Aging and Rehabilitative Services. This funding is estimated to provide 454 client slots the first year and 454 client slots the second year for guardianship services for individuals with ID/DD, as authorized by DBHDS.

4. Out of this appropriation, $686,000 the first year and $686,000 the second year from the general fund shall be used to provide services through the Virginia Public Guardian and Conservator Program for individuals with mental illness. This funding shall be expended pursuant to an interagency agreement between the Department of Behavioral Health and Developmental Services (DBHDS) and the Department for Aging and Rehabilitative Services. This funding is estimated to provide 98 client slots the first year and 98 client slots the second year for guardianship services for individuals with mental illness, as authorized by DBHDS.

Charts and Statistics

Disability

• National Chart (CDC)
• Virginia Disability Statistics (CDC)
• Virginia Disability Statistics (UVA)

Hospital Discharge Requirements and Resources;
Nursing Home Admissions and Discharges

42 CFR § 482.43 – Condition of participation: Discharge planning.

Resources:

• CMS Guidance, Official Manual
• Guidance Portal (CMS) (linking to Manual Revision above)
• The Basics: Summary National Health Policy Forum (2016)

• Admission and discharge rights in nursing facilities. CMS State Operations Manual Appendix PP – Guidance to Surveyors for  Long Term Care Facilities Section §483.15.

Guardians Ad Litem

Virginia Judicial System Guardian ad Litem site

Brief Interview for Mental Status Calculator.  According to the purveyor, the test “[e]valuates cognitive impairment and can help with dementia diagnosis.”

• Proposed Guardian / Conservator Disclosure regarding attorney client relationship with petitioner seeking guardianship (CC-1643) (2020)

02/05/2024 4:02:15 PM