By, Susan Gao, Elder & Disability Law Clinic Student, Spring 2022
I first learned the concept of guardianship in 2020 when I watched the movie, I Care A Lot. Rosamund Pike, who brilliantly portrayed the shrewd housewife in Gone Girl, played Marla Grayson, a professional legal guardian who succeed in “caring” for her wards. Grayson made a profitable business taking control over the financial assets of rich and often demented elderlies. Once appointed as the legal guardian, Grayson would raid her wards’ homes for valuables, access their bank accounts, and bill herself a ton of hours to profit from their wealth.[1] When I saw the scene where Grayson looked proudly at her office wall plastered with pictures of her “victims,” I quietly hoped that I would never be in a position of needing a legal guardian.
I had a change of heart when I found out about the Elder and Disability Law Clinic at William & Mary Law School. In my last semester of law school, I decided to join the clinic to better understand the legal guardianship and conservatorship system in Virginia. Is it possible for people like Mala Grayson to take advantage of their wards?
First, it should be noted that legal guardianship or conservatorship should be a last resort. Unless an adult is truly incapacitated, rights and freedoms should not be taken away. Whether a person is deemed to be “incapacitated” is a legal determination made by courts, and that is the first legal safeguard to prevent people like Grayson from committing fraud. In Virginia, an adult is deemed “incapacitated” when “incapable of receiving and evaluating information effectively.”[2] Incapacity also applies when an adult cannot “respond[] to people, events, or what is going on around him to such an extent” that he cannot meet his essential healthcare and safety needs or manage his property or financial affairs without outside assistance.[3] Part of the court’s “incapacity” determination is a medical report that lawyers must file on behalf of the person (“respondent”) seeking guardianship. The medical report needs to be prepared by a licensed professional, such as a physician, psychologist, or someone skilled in making the medical assessment.[4]
In addition, a respondent will also need to be put on notice about the petition for legal guardianship. The respondent must be given a copy of the filed petition and notice of hearing; the filed petition and notice of hearing must also be mailed to the respondent’s spouse, adult children, parents, adult siblings, and other known relatives. The respondent would also have the right to be present at his guardianship hearing and hire a lawyer to represent him.[5]
Finally, a Virginia court making a ruling on guardianship or conservatorship must weigh the following factors:
- The limitations of the respondent,
- The development of the respondent’s maximum self-reliance and independence,
- The availability of less restrictive alternatives, including advance directives and durable powers of attorney
- The extent to which it is necessary to protect the respondent from neglect, exploitation, or abuse
- The actions needed to be taken by the guardian or conservator,
- The suitability of the proposed guardian or conservator[6]
The system is not without flaws. Indeed, according to the Joint Legislative Audit & Review Commission (JLARC), the Virginia Legislature can make several systematic improvements to protect vulnerable adults from being exploited. For instance, the judges in court may lack adequate information when appointing a guardian or conservatorship.[7] In addition, while the Virginia law requires that guardians “visit the incapacitated person as often as necessary,”[8] the language is vague and may hinder a guardian from properly noticing changes in the ward’s conditions. It should be amended to quantified by specific terms of frequencies.[9]
In anticipation of the 2022 Virginia General Assembly, JLARC proposed 42 reforms to improve the legal guardianship system.[10] Some reforms I found relevant are additional obligations imposed on the guardian ad litem—a court-appointed attorney to represent the respondent’s interests. For instance, the guardian ad litem should be required to explain in their report their reasoning to not recommend counsel for an adult under consideration for guardianship.[11] To ensure that the proposed guardian has adequate resources to care for a respondent, the guardian ad litem should include in his report the size of the prospective guardians’ current caseload, whether the proposed guardian employs representatives to manage day-to-day tasks, the distance between the proposed guardian’s business and the respondent.[12]
Other relevant reforms include requiring circuit courts to hold a periodic review hearing for guardianship and conservatorship cases no later than one year after the appointment of the guardian and at least once every three years thereafter.[13]
While the legal guardianship system is not without flaws, I believe it provides a valuable service to those who truly cannot take care of themselves. I hope to gain a deeper understanding of the system as I continue to help clients seek legal guardianship and conservatorship this semester.
[1] https://www.denofgeek.com/movies/i-care-a-lot-professional-guardians-conservatorships/
[2] Va. Code Ann. § 64.2-2000
[3] Id.
[4] Virginia Poverty Law Center, VALegalAid.org, https://www.valegalaid.org/resource/adult-guardianship-and-conservatorship
[5] Id.
[6] Id.
[7] Jackie DeFusco, Britney Spears isn’t alone: Virginia’s adult guardian system is flawed, new report finds, ABCNews, https://www.wric.com/news/politics/capitol-connection/britney-spears-isnt-alone-virginias-adult-guardian-system-is-flawed-new-report-finds/
[8] Code of Virginia, § 64.2-2019 (C).
[9] See DeFusco, supra note 7 (JLARC suggested mandating a minimum of one visit every three months).
[10] Defusco, supra note 7.
[11] JLARC, Improving Virginia’s Adult Guardian and Conservator System, http://jlarc.virginia.gov/landing-2021-virginias-adult-guardian-and-conservator-system.asp
[12] Id.
[13] Id.