The reality today for the hundreds of voiceless, vulnerable, elderly incapacitated citizens who have the misfortune to be consigned to the two largest public guardianship programs in the Hampton Roads area, Jewish Family Service of Tidewater and Catholic Charities of Eastern Virginia, is a far cry from the unrealized ideal of reform. Mismanagement, understaffing, pervasive conflicts of interest, poor decision-making, unsafe and unsanitary placements, lack of accountability, judge-shopping, attorney-shopping, the arrogant, dismissive ridicule of fundamental rights, statutory requirements, and court orders, and wholesale disregard for the best interests of the incapacitated client rule the day.
The current system of public guardianship is an affront to the dignity and independence of elderly citizens, a danger to their safety and well-being, and an indictment of the public agencies who refuse to provide constructive assistance and much-needed oversight.
Attorneys who petition for the appointment of a public guardianship program often file a case with the court fewer than seven days before the scheduled hearing. They send a private process server to a hospital, nursing facility, assisted living facility, or other location to “serve” the incapacitated person by handing a copy of the Notice and Petition to him. However, the process server or staff immediately take the Notice and Petition away to “place it on the chart,” not allowing the incapacitated person to read it, to keep it, or to show it to relatives or other visitors.
The petitioning attorney also often ignores the requirement to mail a copy of the Notice and Petition to the incapacitated person at least seven days before the hearing. Alternatively, the mailed copy is intercepted by staff or others and not delivered to the incapacitated person. In addition to the Notice and Petition, the petitioning attorney is required to ensure that a copy of the order appointing a guardian ad litem is served upon the incapacitated person. Since the GAL order is sometimes entered after the date of service on the incapacitated person, this requirement has obviously been ignored.
The deliberate failure to provide proper notice to known family members is a very common abuse in public guardianship cases. Social Services, hospital, and nursing or assisted living facility social workers falsely claim that they do not know the name or location of family members, even when that claim is demonstrably absurd. For example, a so-called “missing” family member may in fact receive extensive services from the Virginia Beach Department of Human Services. Maryview Medical Center will conveniently claim it cannot locate a family member to send a guardianship petition, but then find the very same family member to send a bill. A son in Virginia Beach receives a witness subpoena at his correct address, but the Virginia Beach city attorney’s office fails to send him a Notice and Petition, falsely certifying to the court that his address is unknown. A Bon Secours social worker may even speak several times with the brother of an incapacitated person on the phone, failing to ask his address, then disingenuously certify that the whereabouts of any family members are “unknown.” When questioned, these social workers will often offer the lame excuse that “he’s not involved,” or protest “what do the other GALs say about it?”
A caring, capable guardian ad litem should serve as a safeguard for the rights and best interests of the incapacitated person, acting as a check on the power of institutional petitioners like hospitals and Social Services agencies. Predictably, the public guardianship programs have found a means to circumvent this safeguard. They hand-pick a “cozy” guardian ad litem, over and over again, to “represent” the incapacitated person, because this sycophantic GAL always agrees with them.
When the petitioner gives untimely or inadequate notice to the incapacitated person, or fails to notify known family members, the “cozy” guardian ad litem does not object. When the guardianship programs want unlimited court orders and no accountability, the “cozy” guardian ad litem agrees. When pesky attorneys or bothersome family members present a procedural or substantive obstacle to the whims of institutional petitioners and public guardianship programs, the “cozy” guardian ad litem body slams these irritants out of the way, ramming the case through court as quickly as possible. The “cozy” guardian ad litem acts as a cheerleader for the guardianship programs, covering up mistreatment of the incapacitated person and purporting to waive rights that properly belong to the incapacitated client, not to the GAL.
One “cozy” guardian ad litem has earned over $60,000 a year, every year, for the last several years “representing” indigent incapacitated people. During the same time period, this GAL has also earned similar amounts, literally thousands of dollars per case, representing the non-indigent. This GAL accepts numerous cases from a petitioning attorney who is a close friend, ignoring the obvious conflict of interest. For many years, until very recently, this GAL did not even have malpractice insurance.
How can the court resolve this inherent conflict of interest and protect the incapacitated person? By reclaiming its authority to select the guardian ad litem in every case, free of influence from institutional petitioners such as hospitals and Social Services agencies, and from the public guardianship programs. Even if the court appoints the very same GAL, the GAL will not feel pressured to agree with institutional petitioners and with the public guardianship programs that provide the overwhelming majority of the GAL’s caseload.
Noted attorney Brendan Sullivan became famous during the Iran-Contra hearings, when he represented Colonel Oliver North. When the congressional committee chairman, weary of Sullivan’s objections, suggested that North should speak for himself, Sullivan responded, "Well, sir, I'm not a potted plant. I'm here as the lawyer. That's my job."
An occasional unfortunate corollary to the “cozy” guardian ad litem is the “potted plant” posing as an attorney for the incapacitated person.
When the incapacitated person comes to court and makes a specific request, the judge will sometimes continue the case so that the incapacitated person can obtain an attorney. The guardian ad litem will then refer the incapacitated person to another “cozy” guardian ad litem, to a personal friend, or to another attorney who can be trusted to roll over and play dead, behaving like a “potted plant,” instead of providing adequate representation to the incapacitated person.
If an attorney refuses to commit malpractice and throw the client’s case, you can expect the Virginia Beach Department of Human Services, the “cozy” guardian ad litem, and the public guardianship program to disingenuously object that the attorney does not really represent the incapacitated person, that the attorney is acting "beyond the scope” of the representation (whatever that means), or that the attorney is acting “without the authorization” of the incapacitated person, no matter the overwhelming evidence to the contrary. That evidence may include numerous authorizations signed by the client, numerous court pleadings signed by the client, several credible witnesses to conversations between the attorney and the client, in which the client vehemently protests attempts to interfere with the right to a lawyer, and literally hundreds of telephone calls from the client to the attorney, verified by telephone records, as well as the client’s own statements in open court. No matter, these cynical attorneys and callous agencies illegally attempt to deprive the incapacitated client of the right to an attorney.
The Virginia State Bar rule about lawyers who represent an incapacitated person is quite simple:
An excerpted explanation follows:
When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
A person who is incapacitated, no matter the degree, is entitled to genuine representation of his reasonable wishes from an attorney of his choice at every stage of a guardianship proceeding. In the harsh reality of today’s public guardianship programs, that fundamental right is seldom recognized.
When the client suffers from a diminished mental capacity, maintaining the ordinary client-lawyer relationship may not be possible in all respects. Nevertheless, a client with diminished capacities often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being. For example, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters.
The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.
If the lawyer represents the guardian as distinct from the ward, and is aware that the guardian is acting adversely to the ward's interest, the lawyer may have an obligation to prevent or rectify the guardian's misconduct.
An example of this unethical practice will serve better than an explanation. A psychiatrist at Maryview Medical Center, asked to perform a competency evaluation of a patient, opines that “pt. seems to have capacity to make decisions regarding her health and other issues and does not need assistance.” Two days later, under pressure from a Maryview social worker, the psychiatrist reverses her opinion, stating that “patient does not seem to have capacity to make decisions regarding her health and other issues and does not understand the risk of refusing treatment or the benefits of treatment or [illegible]. Patient needs assistance in decision making.”
Six weeks later, Maryview’s attorney petitions the court for appointment of a public guardianship program. Sensing trouble, the psychiatrist wisely refuses to re-evaluate the patient.
Maryview’s attorney does not submit the first report to the court. The “cozy” guardian ad litem, Ros R. Willis, who always “represents” incapacitated patients at Bon Secours hospitals, does not investigate, object, or submit the first report to the court. To add insult to injury, the GAL observes that the patient “exhibits extremely poor judgment,” apparently oblivious to the statute that specifically provides that “poor judgment alone shall not be considered sufficient evidence” for the appointment of a guardian or conservator.
To its credit, the public guardianship program quickly realizes that the patient has the capacity to make her own decisions and seeks her restoration to capacity. Nevertheless, in spite of five subsequent doctors’ reports stating that the patient is competent and able to make her own decisions, it takes over two years, and the intervention of Adult Protective Services, a new attorney, and a new guardian ad litem, to free this client from the public guardianship program.
For anyone accustomed to ordinary standards of Western jurisprudence, a typical hearing to appoint a public guardianship program is a curious thing. Only two attorneys attend, the petitioning attorney and the guardian ad litem, who are sometimes close friends, former co-workers, or office mates. They approach the bench and hand the GAL report and a perfunctory medical report to the judge. They discuss the GAL fee, then the judge signs the order, with few or no questions. No one is present from the petitioning hospital or agency to verify or testify about the allegations in the petition. The incapacitated person is not allowed to come to court, even if he objects to the petition and wants the judge to hear his side of the story. No family members attend the hearing, usually because they have not received proper notice, or for that matter, any notice at all.
The local courts do not use video or other alternative forms of communication, do not change the location of the hearing to accommodate the incapacitated person, and do not transport the incapacitated person to the hearing, because the “cozy” guardian ad litem never requests it, and never bothers to convey to the judge the incapacitated person’s request to attend the hearing and to dispute the allegations in the petition.
There is no specific means, such as a standardized written form, for an incapacitated person who is not present in court to communicate a request for an attorney or a waiver of an attorney, other than the highly questionable word of the guardian ad litem. Likewise, there is no specific means for an incapacitated person to indicate a request to attend the hearing, again, other than the word of the guardian ad litem.
In the past, some public guardianship cases, particularly in Norfolk, were not even listed on the docket! Instead, the petitioning attorney and guardian ad litem would walk in with the papers, “find a judge,” get the guardianship order signed, and leave the courthouse before the scheduled hearing time of 9:00 a.m. If a family member arrived to contest the petition, he was out of luck; the case had already been heard. Improvements in the electronic docket have ended this abusive practice, but have not alleviated the underlying abusive attitude.
Innocent, vulnerable, elderly citizens who stand to lose their house, their income, their residence, their self-determination, their safety, their ability to see family members and friends, to go to church, or to participate in the community, are accorded fewer procedural protections than accused terrorists at Guantanamo, accused murderers, or serial child molesters, with no recourse.
Under the law, the incapacitated person must receive a Notice of the hearing to appoint a public guardianship program. The format of that Notice is specifically prescribed and compliance is “jurisdictional.” This means that the incapacitated person cannot waive notice, and that any order entered without this prescribed Notice is void and of no effect.
The prescribed Notice must contain certain warnings, such as a statement of the purpose of the proceedings, a statement of the right to be represented by counsel, and a statement of the right to attend the hearing.
The local courts, usually through their law clerks, meticulously scrutinize these paper Notices. Attorneys who regularly petition for appointment of a public guardianship program quickly learn to ensure that these warnings are listed conspicuously in the proper type and format on the Notice.
What these attorneys and the “cozy” guardian ad litem do not appear to recognize is that the incapacitated person is not merely entitled to a piece of paper in the prescribed format stating that he has the right to be represented by counsel, but to the actual right to actually be represented by counsel. If lack of the prescribed Notice is jurisdictional, rendering void an order entered in its absence, then disregard of an actual request to actually be represented by counsel is also surely jurisdictional, rendering void an order entered in its absence.
By the same token, if lack of a piece of paper stating that the incapacitated person has a right to attend the hearing is jurisdictional, rendering any resulting order void, then surely disregard of an actual request to actually attend the hearing must also be jurisdictional, rendering any resulting order void.
The guardian ad litem cannot waive the incapacitated client’s right to counsel of his choice on request, and cannot waive the incapacitated client’s right to attend the hearing, or to participate by some means in the hearing, on request. If the guardian ad litem attempts to make an unauthorized waiver of these fundamental rights, the resulting order will almost certainly be void and of no effect.
Given the arrogant, dismissive contempt and ridicule in which the usual petitioning attorneys and “cozy” guardian ad litem hold the procedural rights of incapacitated individuals, these jurisdictional defects are likely to be fairly common, and call into question the validity of numerous court orders that the public guardianship programs use every day to make medical decisions, to consent to surgery, to sell real estate, to allow a client’s house to go into foreclosure, and to spend the income and change the residence of elderly and incapacitated individuals.
For its own protection, and for the protection of voiceless, vulnerable, elderly incapacitated citizens, the court should meticulously scrutinize the conduct of these petitioning attorneys and guardian ad litem, to ensure that they respect, honor, and guarantee that incapacitated individuals are actually represented by counsel on request, and that incapacitated individuals actually attend the hearing on request. A right is not realized on paper; it is realized in reality, in concrete action.
Catholic Charities of Eastern Virginia and particularly Jewish Family Service of Tidewater insist upon unlimited court orders, with numerous boilerplate provisions to dramatically broaden their authority. If anyone attempts to delineate their responsibilities or in any way limit their powers, the public guardianship programs use their incapacitated clients as a human shield, threatening that they cannot offer any services unless they have broad, unlimited authority and no oversight.
The “usual suspects,” the guardian ad litem and the petitioning attorney, ignore specific limiting factors set forth in the statutes. For example, neither institutional petitioners nor the public guardianship programs make any recommendations as to living arrangements, nor do they offer a treatment plan for the incapacitated person, as required by law. They do not address the development of the incapacitated person's maximum self-reliance and independence, the availability of less restrictive alternatives, or the suitability of the public guardianship programs to perform their fiduciary duties. They ignore required considerations like a familial or other relationship with the incapacitated person, an ability to carry out the powers and duties of the office, a commitment to promoting the incapacitated person's welfare, any potential conflicts of interests, the wishes of the incapacitated person, the recommendations of relatives, and the proper residential placement of the incapacitated person. In essence, the public guardianship programs expect an unspoken, automatic double standard, in which they are always good, relatives are always bad, and they are unquestioningly granted plenary authority, with no oversight whatsoever.
Moreover, court action to appoint a public guardianship program is an overused remedy, with less restrictive alternatives, like the provision of services, underutilized. For the four year period from fiscal year 2010 to fiscal year 2013, for example, the Adult Protective Services unit of the Virginia Beach Department of Human Services reported 425 open cases. (Some of these numbers may overlap from year to year). According to the Virginia Beach Department of Human Services, legal action was required in 232 cases. Adult Protective Services itself initiated legal action in 119 of these cases.
The Virginia Beach Department of Human Services obtained the appointment of a public guardianship program in 92 of the 119 cases in which it acted as petitioner, or 77.3% of the total.* A relative was appointed in only 37 cases, almost always on petition of the relative, not Adult Protective Services.
|Fiscal year||Open||Legal action required||APS initiated legal actions||Public guardian/ conservator appointed||Relative/ friend appointed||% of APS legal actions appointing public guardian/conservator|
*Since the Virginia Beach Department of Human Services lists 25 cases as "null" during fiscal year 2013, the actual numbers for this year may be significantly higher.
Most disturbingly, the public guardianship programs, with the assistance of a “cozy” guardian ad litem and institutional petitioners, go to extraordinary lengths to obstruct any review or modification of court orders, or any attempt to hold the guardianship programs accountable for their actions. They insist, contrary to the law, that a court order is “final” or that a case is “over.”
Any person, including the incapacitated person, the guardian ad litem, or even the court itself, can petition the court to review, modify, or terminate an order appointing a public guardianship program at any time. There is no standing requirement. There is no timing requirement. The best interest of the incapacitated person is always before the court. The actions of the public guardianship programs are always subject to the court’s review and supervision. There is no such thing as a “final” court order in any guardian/conservatorship case.
The information presented here is not intended to serve as legal advice or to take the place of a professional legal consultation. The creators of this website have no liability or responsibility to any person or entity with respect to any loss or damage alleged to be caused directly or indirectly by the information presented on this website. If you have questions about the care or circumstances of an incapacitated person in a public guardianship program, please consult an attorney as soon as possible!