HB634: Guardianship visitation requirements; DARS shall convene a work group to review and evaluate.
Be it enacted by the General Assembly of Virginia:
1. § 1. The Virginia Department for Aging and Rehabilitative Services shall convene a work group including representatives from public guardianship provider organizations, private guardianship attorneys, the Virginia Academy of Elder Law Attorneys, the Virginia disAbility Law Center, the Virginia Poverty Law Center, the Virginia Department for Aging and Rehabilitative Services, and the Virginia League of Social Services Executives; a representative from the Office of the Executive Secretary of the Supreme Court of Virginia, the Virginia Working Interdisciplinary Networks of Guardianship Stakeholders, the Virginia Hospital and Healthcare Association, the Virginia Health Care Association, and the Virginia Center for Assisted Living; and an individual who has served as guardian to a family member to (i) evaluate how a requirement for private guardians to visit the individual under their guardianship in person at least once every 90 days would reduce the availability of willing and qualified individuals to serve as private guardians, if at all; (ii) consider whether a different number and frequency of visits per year, other than least once every 90 days, would better balance resource constraints with the importance of guardian visits to the incapacitated person under their care; (iii) determine the additional resources, if any, needed to mitigate the negative impacts of an increased visitation requirement on the willingness and availability of qualified individuals to serve as private guardians; (iv) determine how those resources could be allocated to the relevant private and public entities in the guardianship system to promote compliance with an increased visitation requirement; and (v) determine whether expansion of the Virginia Public Guardian and Conservator Program would substantially alleviate issues related to these concerns.
The work group shall develop a summary of its activities and recommendations for establishing the number of required private guardian visits per year, the frequency with which they should occur, whether they should be in-person or virtual, the resources needed to carry out the work group's recommendations, and any other parameters that should be incorporated into a new visitation requirement. The summary and recommendations shall be submitted to the Chairs of the House Committee for Courts of Justice and the Senate Committee on the Judiciary by November 1, 2022.
Be it enacted by the General Assembly of Virginia:
1. § 1. The Virginia Department for Aging and Rehabilitative Services shall convene a work group including representatives from public guardianship provider organizations, private guardianship attorneys, the Virginia Academy of Elder Law Attorneys, the Virginia disAbility Law Center, the Virginia Poverty Law Center, the Virginia Department for Aging and Rehabilitative Services, and the Virginia League of Social Services Executives; a representative from the Office of the Executive Secretary of the Supreme Court of Virginia, the Virginia Working Interdisciplinary Networks of Guardianship Stakeholders, the Virginia Hospital and Healthcare Association, the Virginia Health Care Association, and the Virginia Center for Assisted Living; and an individual who has served as guardian to a family member to (i) evaluate how a requirement for private guardians to visit the individual under their guardianship in person at least once every 90 days would reduce the availability of willing and qualified individuals to serve as private guardians, if at all; (ii) consider whether a different number and frequency of visits per year, other than least once every 90 days, would better balance resource constraints with the importance of guardian visits to the incapacitated person under their care; (iii) determine the additional resources, if any, needed to mitigate the negative impacts of an increased visitation requirement on the willingness and availability of qualified individuals to serve as private guardians; (iv) determine how those resources could be allocated to the relevant private and public entities in the guardianship system to promote compliance with an increased visitation requirement; and (v) determine whether expansion of the Virginia Public Guardian and Conservator Program would substantially alleviate issues related to these concerns.
The work group shall develop a summary of its activities and recommendations for establishing the number of required private guardian visits per year, the frequency with which they should occur, whether they should be in-person or virtual, the resources needed to carry out the work group's recommendations, and any other parameters that should be incorporated into a new visitation requirement. The summary and recommendations shall be submitted to the Chairs of the House Committee for Courts of Justice and the Senate Committee on the Judiciary by November 1, 2022.
HOUSE BILL NO. 634
Be it enacted by the General Assembly of Virginia:
1. That § 64.2-2019 of the Code of Virginia is amended and reenacted as follows:
§ 64.2-2019. Duties and powers of guardian.
A. A guardian stands in a fiduciary relationship to the incapacitated person for whom he was appointed guardian and may be held personally liable for a breach of any fiduciary duty to the incapacitated person. A guardian shall not be liable for the acts of the incapacitated person unless the guardian is personally negligent. A guardian shall not be required to expend personal funds on behalf of the incapacitated person.
B. A guardian's duties and authority shall not extend to decisions addressed in a valid advance directive or durable power of attorney previously executed by the incapacitated person. A guardian may seek court authorization to revoke, suspend, or otherwise modify a durable power of attorney, as provided by the Uniform Power of Attorney Act (§ 64.2-1600 et seq.). Notwithstanding the provisions of the Health Care Decisions Act (§ 54.1-2981 et seq.) and in accordance with the procedures of § 64.2-2012, a guardian may seek court authorization to modify the designation of an agent under an advance directive, but the modification shall not in any way affect the incapacitated person's directives concerning the provision or refusal of specific medical treatments or procedures.
C. A guardian shall maintain sufficient contact with the
incapacitated person to know of his capabilities,
limitations, needs, and opportunities
as needed to comply with the duties imposed upon him
pursuant to the order of appointment and this section. The
guardian shall visit the incapacitated person as often as necessary and at least once every 90
days. During each visit,
the guardian shall observe and assess the
following: (i) the safety and adequacy of the incapacitated
person's living arrangements;
(ii) the incapacitated person's
overall mental, physical,
and social condition especially as
compared to previous visits; (iii) whether and how the incapacitated person's
physical and mental health care
needs are being met, including whether the adult has been hospitalized and why;
(iv) progress made by the incapacitated person toward any
expressed goals; (v) participation by
the incapacitated person in social
activities and educational or vocational programs; and
(vi) contact and involvement with relatives
and friends by the incapacitated person.
In the event of a state of emergency or public health crisis in which the facility in which an adult resides is not allowing in-person visitation, visitation requirements of this subsection can be met via virtual conference or video call between the guardian and incapacitated person, to the extent that is feasible that the facility can provide the technological means by which such conference or call can take place. A telephone call may be used in instances where such technological means are not readily available to be provided. Further, if for reasons outside of the guardian's control the guardian cannot physically visit an incapacitated person, then such visits may be conducted virtually through electronic means such as virtual conference or video call or telephone.
D. A guardian shall be required to seek prior court authorization to change the incapacitated person's residence to another state, to terminate or consent to a termination of the person's parental rights, or to initiate a change in the person's marital status.
E. A guardian shall, to the extent feasible, encourage the incapacitated person to participate in decisions, to act on his own behalf, and to develop or regain the capacity to manage personal affairs. A guardian, in making decisions, shall consider the expressed desires and personal values of the incapacitated person to the extent known and shall otherwise act in the incapacitated person's best interest and exercise reasonable care, diligence, and prudence. A guardian shall not unreasonably restrict an incapacitated person's ability to communicate with, visit, or interact with other persons with whom the incapacitated person has an established relationship.
F. A guardian shall have authority to make arrangements for the funeral and disposition of remains, including cremation, interment, entombment, memorialization, inurnment, or scattering of the cremains, or some combination thereof, if the guardian is not aware of any person that has been otherwise designated to make such arrangements as set forth in § 54.1-2825. A guardian shall have authority to make arrangements for the funeral and disposition of remains after the death of an incapacitated person if, after the guardian has made a good faith effort to locate the next of kin of the incapacitated person to determine if the next of kin wishes to make such arrangements, the next of kin does not wish to make the arrangements or the next of kin cannot be located. Good faith effort shall include contacting the next of kin identified in the petition for appointment of a guardian. The funeral service licensee, funeral service establishment, registered crematory, cemetery, cemetery operator, or guardian shall be immune from civil liability for any act, decision, or omission resulting from acceptance of any dead body for burial, cremation, or other disposition when the provisions of this section are met, unless such acts, decisions, or omissions resulted from bad faith or malicious intent.
G. In carrying out the duties prescribed by this section and under the order of appointment, a guardian may utilize a person, who is directly employed and supervised by the guardian, or contract the services of a care manager who is a trained professional who specializes in the field of life-care management, geriatrics, older adults and aging or adults with disabilities and who provides written reports to the guardian regarding any such visits. Any such person employed or contracted may only visit the incapacitated person up to two times in lieu of such guardian to satisfy the visitation requirement prescribed by subsection C.
The funds to employ or contract the services of any such person shall not come out of the incapacitated person's estate and or financial accounts.