Incapacitated persons; filing of evaluation reports, requirement for filing under seal. (HB413)
Introduced By
Del. Patrick Hope (D-Arlington)
Progress
✓ |
Introduced |
✓ |
Passed Committee |
✓ |
Passed House |
✓ |
Passed Senate |
✓ |
Signed by Governor |
☐ |
Became Law |
Description
Filing of evaluation reports for incapacitated persons; requirement for filing under seal. Requires that medical evaluation reports filed in guardian or conservator proceedings before the circuit court be filed under seal. The bill also requires that a copy of the report be provided to the guardian ad litem, the respondent, and all adult individuals and entities whose names and post office addresses appear in the petition within a reasonable time prior to the hearing on the petition. Read the Bill »
Outcome
Bill Has Passed
History
Date | Action |
---|---|
01/03/2014 | Committee |
01/03/2014 | Prefiled and ordered printed; offered 01/08/14 14100833D |
01/03/2014 | Referred to Committee for Courts of Justice |
01/09/2014 | Assigned Courts sub: Civil |
01/13/2014 | Subcommittee recommends reporting (9-Y 0-N) |
01/20/2014 | Reported from Courts of Justice (21-Y 0-N) (see vote tally) |
01/22/2014 | Read first time |
01/23/2014 | Read second time and engrossed |
01/24/2014 | Read third time and passed House BLOCK VOTE (95-Y 0-N) |
01/24/2014 | VOTE: BLOCK VOTE PASSAGE (95-Y 0-N) (see vote tally) |
01/27/2014 | Constitutional reading dispensed |
01/27/2014 | Referred to Committee for Courts of Justice |
02/19/2014 | Reported from Courts of Justice (15-Y 0-N) (see vote tally) |
02/21/2014 | Constitutional reading dispensed (40-Y 0-N) |
02/24/2014 | Read third time |
02/24/2014 | Passed Senate (40-Y 0-N) |
02/26/2014 | Enrolled |
02/26/2014 | Bill text as passed House and Senate (HB413ER) |
02/26/2014 | Signed by Speaker |
02/28/2014 | Impact statement from DPB (HB413ER) |
02/28/2014 | Signed by President |
03/31/2014 | G Approved by Governor-Chapter 402 (effective 7/1/14) |
03/31/2014 | G Acts of Assembly Chapter text (CHAP0402) |
Comments
Filing these medical reports in support of a guardianship petition under seal sounds like a great idea, but this may one more step along be a slippery slope.
The members of the General Assembly need to understand the depths to which guardianship practice has sunk among a tiny cohort of dishonest lawyers associated with the Catholic Charities of Eastern Virginia and Jewish Family Service of Tidewater public guardianship programs in the Hampton Roads area.
These two or three lawyers ALWAYS hand-pick the same guardian ad litem, over and over, in hundreds of cases, because this GAL ALWAYS agrees with them. (The law says the COURT is supposed to select the guardian ad litem, not the petitioner, and not the public guardianship program. It's a clear conflict of interest for one party to a suit to pick the lawyer "for" the other side.)
This hand-picked GAL body slams and obstructs any attorney who tries to honestly represent the incapacitated person, even though the law guarantees the incapacitated person the right to counsel of THEIR CHOICE.
Here's what one client had to say about her treatment by Jewish Family Service of Tidewater:
http://www.jennyhatchjusticeproject.com/jennys_words
The Virginia Beach Department of Human Services (google VBDHS for more on their sometimes-deadly foibles) and Catholic Charities of Eastern Virginia, along with this hand-picked guardian ad litem, have even gone so far as to flout the deadlines for filing the initial Inventory and Account, completely refuse to answer lawful discovery, obstruct and attempt to delay for months a scheduled hearing in an attempt to prevent the incapacitated person's attorney from bringing these problems to the court's attention, and VIOLATE A COURT ORDER by dumping an elderly lady in a Scott Schuett adult home for seven agonizing months. (Google Scott Schuett for the appalling details of the conditions in these now-closed hellholes.) Now these public guardianship programs want more money to carry on these unethical practices.
So, putting medical records under seal just makes common sense. But unfortunately we have to worry that this additional secrecy will just be misused by these dishonest players to further avoid any scrutiny whatsoever.
As an attorney who regularly serves as a court-appointed guardian ad litem in guardianship and conservatorship cases in Central Virginia, I am generally supportive of the policy advanced by HB413. First, there’s the obvious concerns about the respondent’s privacy (particularly in a case where the respondent is ultimately found not to be incapacitated). Also, since it’s never really been made clear whether the individuals entitled to notice of the hearing other than the petitioner and the respondent are actually “parties” to a guardianship and/or conservatorship case, providing them with what is almost always the most important piece of evidence in the case at least provides them with some idea of what they would need to be prepared to argue if they decided to get involved at the hearing in the petition.
I do note, however, that the bill doesn’t require the evaluation report to be provided to the petitioner. This wouldn’t be a problem in the majority of cases, where the petitioner obtains the evaluation report before filing the petition. In other situations, however, such as where the petitioner is a concerned friend, neighbor, or other non-relative, the petitioner may not be able to get a mental health professional to turn over the records before filing the petition because of HIPPA issues. When I've encountered these kinds of circumstances in cases where I've been appointed as the guardian ad litem, I've had to secure the evaluation report myself. Other than in cases where there is clearly no question that the respondent is incapacitated (e.g., where the respondent is about to reach the age of majority and his or her parents file the petition so that they can continue to care for their disabled child), the evaluation report is almost always necessary for the court to make an appropriate determination as to the respondent's incapacity. Therefore, it should, in my view, be made available to the guardian ad litem, the petitioner, the respondent, and all persons entitled to notice of the hearing.