The following is an overview of Virginia Code §§ 64.2-2000 et seq. addressing capacity issues for adults who are alleged to be incapacitated and, pursuant to a very detailed statute, if determined by the court to be incapacitated, can have a guardian and/or conservator appointed to protect their interests.
The starting point is the statutory definition of an “incapacitated person” in § 64.2-2000 as follows:
…an adult who has been found by a court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his support or for the support of has legal dependents without the assistance or protection of a conservator.
A finding that the individual displays poor judgment alone shall not be considered sufficient evidence that the individual is an incapacitated person within the meaning of this definition. A finding that a person is “mentally incompetent” as that term is used in Article II, Section 1 of the Constitution of Virginia and Title 24.2 unless the court order entered pursuant to this chapter specifically provides otherwise.
Respondents and family members sometimes object to a guardianship proceeding because they are not “incompetent” or “crazy.”
However, the statutory definition is of “incapacity” relative to specific decision-making abilities. The definition also highlights that poor judgment alone is not sufficient evidence by itself to support a finding of incapacity. Families challenge financial decisions of a parent because it does not make sense to them, or they would not make the same expenditures. However, as long as the parent has the ability to understand their own actions, the parent can spend funds in any way they wish.
This statute covers adults of all ages and, although there may be an assumption that it is intended for elderly adults, the provision for “adult” also includes children with special needs who have been cared for by a parent, as guardian, but who are now turning 18. Once 18, the adult is legally an adult with decision-making authority and legally protected privacy rights. This statute may be used to have a guardianship order entered in order to provide the special needs child, now adult, with ongoing supervision and to provide the parent with continued access to necessary information. This is specifically addressed in § 64.2-2001(c), which provides that a parent or guardian of a respondent under 18, can file a petition six months before the 18th birthday, or a petition by anyone else can be brought on the respondent’s 18th birthday.
Section 64.2-2005 requires an evaluation report “…by one or more licensed physicians or psychologists or licensed professionals skilled in the assessments and treatment of the physical or mental conditions of the respondent as alleged in the petition.” As drafted, the statute permits entry of an order declaring a person incapacitated based on an evaluation report of a physician or another licensed professional such as a geriatric licensed clinical social worker. This alternative may become necessary where a respondent is withdrawing into a home environment and refusing to cooperate with treating doctors and/or refusing to take medication. Additionally, there may be a medical history, but the respondent’s decline and refusal to cooperate can preclude present circumstances of the respondent from being presented to the court. Lastly, there is a privacy issue in dealing with many physicians who have the long-term doctor/patient relationship.
Section 64.2-2007(c) spells out the factors to be considered: The limitations of the respondent; the development of the respondent’s self-reliance and independence; the availability of less restrictive alternatives, including advanced directives and durable powers of attorney; the extent to which it is necessary to protect respondent from neglect, exploitation, or abuse; the action needed to be taken by the guardian or conservator; and the suitability of the proposed guardian or conservator.
In many cases, these factors overlap. Many respondents are living in their own homes, and, with assistance, can stay in their own homes. With in-home health care, respondents can have someone to provide medication, doctor appointments, meals, and someone to watch them go up and down stairs. A family can provide for ultimate protection of respondent by cooperating to establish a durable power of attorney, and by agreeing to assist this parent and each other in caring for the parent. When this can be done, the family will not have to pursue remedies under this statute.
Most cases come to court because there is no durable power of attorney, and someone needs to be appointed to begin to make necessary decisions on behalf of a respondent.
Many cases come to court because a parent has prepared a durable power of attorney and the named agent is not acting properly.
This usually involves financial exploitation where a parent’s monthly costs are paid by a family member who is also paying their own mortgage and/or credit cards with the parent’s funds. When confronted, the response is that the parent agreed with these payments, and the parent’s response is that this is the only person who is taking care of them, and everything they want to do is fine.
The “limitations of respondent” can deal with a person who has an Alzheimer’s diagnosis, who can function, but who becomes depressed or paranoid as an early reaction to the progression of the disease. Either depression or paranoia can block involvement by a family or third parties who are trying to help respondent but are prevented. This can be handled by medication, if respondent will accept the medication, or by appointment of a guardian to take over the health care decision-making.
In many cases, the appointment of a guardian and conservator is required for urgent and immediate action, such as consent to hospitalization or surgery by the guardian, or payment of overdue bills by the conservator to prevent discharge from a nursing facility, or to pay a mortgage to stop foreclosure. There are also immediate placement decisions where a respondent has declined to the point where they can no longer live safely at home, but has refused to relocate voluntarily.
The court must also decide who should be appointed, and, again, in most cases there are responsible family members to take care of respondent. However, there are many cases where no one can or will step forward, and also cases where the family dysfunction is pervasive and no one will act for the best interest of the respondent. In those cases, judges can, and usually do appoint an attorney.
- By James McConville