Virginia’s private guardianship program fails to protect the state’s most vulnerable residents

A new report found guardians face little oversight while wielding broad power over incapacitated adults

By: - October 19, 2021 12:03 am

(Getty Images)

Some of Virginia’s most at-risk adults aren’t sufficiently protected by the state’s private guardianship system, according to a new report from a legislative watchdog agency.

The findings, detailed in a Monday hearing by the Joint Legislative Audit and Review Commission, largely affirm years of concerns from many advocates and family members. A 2019 investigation by the Richmond Times-Dispatch also detailed numerous faults within the system, which is subject to little oversight but has broad discretion to remove the decision-making rights of adults in its care.

“The state’s role is woefully inadequate, given that these guardians are responsible for some of the most vulnerable Virginians,” JLARC Director Hal Greer told legislators at the meeting. “The private system lacks meaningful standards, requirements or accountability to help ensure that thousands of adults are being adequately served.”

Like other states, Virginia developed its guardianship process to help so-called “incapacitated adults” — those 18 years or older who are found to be incapable of meeting their own essential needs. The process begins with a circuit court petition — which can be filed by an individual or an “entity” — according to the JLARC report, and judges ultimately decide whether a guardian will be appointed. 

GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX

Of the roughly 12,000 adults under guardianship care, 1,000 are served by the state’s publicly funded system, which has been described as a national model. But Kathy Hayfield, commissioner for the Virginia Department of Aging and Rehabilitative Services, said the $4.5 million program is already considered underfunded for the adults it serves. 

According to JLARC, nearly 700 people are currently on the waitlist. Eligibility is limited to adults who are deemed incapacitated, low-income and who don’t have another individual willing to serve as their guardian.

“The older term for that was ‘indigent and friendless,’” said Joe McMahon, JLARC’s project leader for the report. Those strict admission criteria leave roughly 11,000 Virginians, half between the ages of 18 and 44, to be served by the private guardianship system.

Unlike the publicly funded program, though, private guardians receive little oversight and aren’t subject to either independent monitoring or training and caseload requirements. Family members and friends can serve as guardians, but so can attorneys or “organizations,” McMahon said. 

The Richmond Times-Dispatch, for instance, found that VCU Health has filed hundreds of petitions to remove their patients’ decision-making rights — a way to free up hospital beds and reduce uncompensated care. Many of those patients have been assigned to attorneys paid by VCU. 

One, R. Shawn Majette, had up to 120 patients under his guardianship at the time the story was filed. Similarly high caseloads aren’t unheard of in the private guardian system. While many guardians only have a single person under their care, a “small subset” are responsible for more than 20 people, according to McMahon.

“That’s a median of 33 adults per guardian in this group,” he said. And unlike the public system, those guardians aren’t required to regularly visit the adults they serve. The Times-Dispatch found that many of VCU’s patients were placed in low-rated nursing homes, sometimes against the wishes of their own families or loved ones.

The power granted to private guardians is especially problematic given the lack of oversight by the state, analysts found. Guardianship is often a “lifelong arrangement,” according to the report, and guardians have wide latitude to restrict contact with the adults they serve. Often, that’s done without giving a rationale or explaining the process for appealing the decision in court. 

At the same time, private guardians aren’t subject to any independent monitoring to ensure they’re providing adequate care. The bulk of the state’s oversight comes through an annual reporting form, which is overly broad and not structured to collect good data, according to the report.

“Its reliance on open-ended questions enables vague and inconsistent reporting,” McMahon said. One section, for example, asks guardians to describe the physical, mental and emotional condition of adults in their care. JLARC reviewed multiple forms and found many guardians responded with a single-word answer, such as “good.”

The limited data makes it difficult to know the extent of possible abuse or mistreatment within the private guardianship system, the report found. But there can be perverse financial incentives for taking away an adult’s decision-making abilities. The court process, for example, involves an attorney known as a “guardian ad litem,” who’s paid to investigate the patient’s condition and issue a recommendation to the court. 

Analysts found that many petitioners repeatedly request the same guardian ad litem for guardianship cases, potentially creating conflicts of interest.

“The concern is that a GAL could have financial incentive to reach conclusions that support what the petitioner wants — which would be to place someone under guardianship — because they’d be requested again in future cases,” McMahon said. 

And while the majority of petitioners are friends and family members, hospitals and other medical facilities — like VCU Health — accounted for 15 percent of cases within the last five years. The Richmond Times-Dispatch found that VCU paid a private law firm more than $1.15 million to serve as guardians for some of their lowest-income and most vulnerable patients.

Addressing those flaws will likely require more state funding and serious revisions to the state’s current reporting requirements. The final report includes 42 different recommendations for the General Assembly, from establishing a centralized complaint system through the Department of Aging to establishing an independent monitoring program. 

Periodic review hearings could also help ensure that guardianship is still an appropriate arrangement for the adult, according to the report. And while some of the recommendations addressed potential standards and training requirements for private guardians, there’s also concern that overly stringent restrictions could drive caretakers from the program. The majority of incapacitated adults in Virginia are still represented by a single guardian — most likely a friend or family member — who often receive little to no pay, according to McMahon.

“Holding them to the same standards of the public program — we were afraid that could really limit the people who are willing to serve in that role,” he said. One option could be to expand the state’s public program by at least 700 slots to reduce the size of the waitlist, though there would likely be additional demand, according to analysts. 

Lawmakers, at least, seemed open to the suggestion. Del. Ken Plum, D-Fairfax, the legislative chair of JLARC, asked Hayfield to tell the administration there was “a lot of interest” in further funding the program. Del. Danica Roem, D-Manassas, said the report “demonstrated the tragically poor state of oversight of our adult guardianship system” in a joint statement with Del. Mark Levine, D-Alexandria. Both lawmakers sponsored the 2020 legislation directing DMAS to conduct the study.

The Department of Aging, too, acknowledged that the program was badly in need of reform.

“This is something that should not be taken lightly,” Hayfield said. “When an individual’s decision-making rights are removed, very seldom do they ever get them back.”

GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Kate Masters
Kate Masters

An award-winning reporter, Kate grew up in Northern Virginia before moving to the Midwest, earning her degree in journalism from the University of Missouri. She spent a year covering gun violence and public health for The Trace in Boston before joining The Frederick News-Post in Frederick County, Md. While at the News-Post, she won first place in feature writing and breaking news from the Maryland-Delaware-DC Press Association, and Best in Show for her coverage of the local opioid epidemic. Before joining the Mercury in 2020, she covered state and county politics for the Bethesda Beat in Montgomery County, Md.

MORE FROM AUTHOR