Britney Spears isn’t alone: Virginia’s adult guardian system is flawed, new report finds

Virginia

RICHMOND, Va. (WRIC)-Britney Spears’ public battle to get control of her life back put a spotlight on the need for widespread reform, according to advocates. Now, a new report finds Virginia’s system for handling cases like this is flawed.

The Joint Legislative Audit and Review Commission (JLARC) told lawmakers on Monday that the private adult guardianship system in Virginia is “woefully inadequate” to protect against abuse, neglect and exploitation.

The report was authorized in 2020 following an extensive series by the Richmond Times Dispatch. It outlines dozens of legislative fixes ahead of the 2022 General Assembly session.

“The private system lacks meaningful standards, requirements or accountability to help ensure that the thousands of vulnerable adults in this system are being adequately served,” said JLARC Director Hal Greer. 

That’s significant because the private system serves the vast majority of adults in need, accounting for more than 90 percent of the estimated 12,000 people under guardianship in the Commonwealth.

Guardians or conservators are appointed following a circuit court hearing in which an adult is deemed incapacitated due to dementia, a traumatic injury, a disability or a severe mental health condition. Under the private system, a family member, friend, attorney, professional guardian or organization would then gain the power to make a broad range of life decisions on that person’s behalf, as well as financial ones if they’re named a conservator.

An appointment is generally permanent and removes most–if not all–of an adult’s rights, according to JLARC.

The full extent of mistreatment of adults under guardianship is not fully known but JLARC identified 20 cases using public state data since fiscal year 2019, all of which involved family or friends.

The JLARC report outlines 42 recommendations to improve the system as lawmakers call for urgent action.

“This is a serious flaw in our government with our most vulnerable citizens and I don’t think there is a way in which we can excuse that,” said Del. Ken Plum. 

Issues with the system start in court, according to JLARC. That’s because some judges lack adequate information when deciding to appoint a guardian or conservator in the first place. The report recommends providing more training.

JLARC noted training should be required for private guardians as well, who are not subject to any standards under state law currently.

The report found that private guardians are not required to regularly visit the adults they serve either, which may hinder their ability to assess their needs or notice changes in their condition. JLARC suggested mandating a minimum of one visit every three months. 

Furthermore, while guardians are required to submit an annual report to their local social services office as an oversight mechanism, JLARC found it lacks useful questions. That has often led to “vague and inconsistent reporting.” JLARC recommended a redesign of the report. 

As another layer of protection, JLARC suggested implementing monitoring visits from an independent, third party to check on the adult’s condition. Right now, only one Virginia locality does this for private guardians. 

Sen. Jeremy McPike, who has served as a volunteer firefighter and EMT, said these inspections need to cover a significant sample of arrangements each year to make sure people aren’t falling through the cracks.

“Unfortunately, I have seen folks die from the conditions that they are living in and that is just a horrendous failure,” McPike said. “It’s important that you have some outside eyes to see how it is going and what other resources might be needed before they get to a critical point.”

The report also found that guardians have too much authority to restrict family or friends from visiting. It notes that this socialization is critical to prevent and recognize potential issues. JLARC urged lawmakers to limit circumstances in which visitation can be blocked and to require a written explanation for doing so.  

Additionally, the report draws attention to the need for a centralized complaint system, noting that the current process is fragmented in various state agencies and confusing.

JLARC also recommended that the General Assembly require periodic review hearings to consider the restoration of an adult’s rights, unless a judge determines it unnecessary. This is in recognition of the fact that conditions can improve in some cases, that guardians may not always be effective at performing their duties and adults under guardianship may be unable to advocate for themselves.

When it comes to conservators specifically, JLARC found many have no financial expertise and a lack of training may be a risk to an incapacitated adult’s assets. The report further encouraged the General Assembly to explicitly ban conservators from financially benefiting from those assets through self-dealing.

In contrast to the private system, JLARC found that the state’s public guardianship program, which serves low-income adults who don’t have access to other resources, has effective oversight, visitation and training requirements. 

However, the public system is not meeting the current need. JLARC found there are nearly 700 adults on the wait list with delays ranging from 3 months to 4 years, depending on the organization. Those sitting in the backlog either have a temporary private guardian or are not being served at all, according to JLARC. 

Since the full scope of the need is still not fully known, JLARC is urging lawmakers to invest an additional $2.7 million annually to address the wait list, as well as one-time funding to study the possibility of further expansion. 

Virginia’s Department of Aging and Rehabilitative Services Commissioner Kathryn Hayfield was generally supportive of the recommendations. However, she emphasized that improvements will require a significant increase in funding and staff.

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