Administrative Code

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Virginia Administrative Code
Title 22. Social Services
Agency 30. Department For Aging And Rehabilitative Services
Chapter 70. The Virginia Public Guardian and Conservator Program
9/25/2021

22VAC30-70-30. Public guardian programs.

A. Designation. The department shall select public guardian program contractors in accordance with the requirements of the Virginia Public Procurement Act. Only those operations of the public guardian program contractor governed by and funded pursuant to the department's contract shall be designated as public guardian programs. Funding for public guardian programs is provided by the appropriation of general funds.

B. Authority. A public guardian program appointed as a guardian, a conservator, or both shall have all the powers and duties specified in Chapter 20 (§ 64.2-2000 et seq.) of Title 64.2 of the Code of Virginia, except as otherwise specifically limited by a court.

C. Staff.

1. Program director. Each public guardian program shall have a program director who supervises and is responsible for providing public guardianship and public conservatorship services to any incapacitated persons assigned by the court and to provide overall administration for the public guardian program.

2. Client to paid staff ratio.

a. Each public guardian program shall maintain a direct service ratio of clients to paid staff that does not exceed the department's established ideal ratio of 20 clients to every one paid full-time staff person 20 to one.

b. Each public guardian program shall have in place a plan to immediately provide notice to the circuit court or courts and sheriffs in its jurisdiction, where appropriate, and to the department when the public guardian program determines that it may exceed the ideal ratio of clients to paid staff.

c. In an emergency or unusual circumstance, each public guardian program, in its discretion, may exceed the ideal ratio by no more than five additional clients. Each public guardian program shall have in place a policy to immediately provide notice to the department when such an emergency or unusual circumstance occurs and when the emergency or unusual circumstance ends and the ideal ratio has returned to 20 to one. The notice to the department shall comply with policy established by the department. Other than an emergency or unusual circumstance as described in the preceding sentence, a waiver must be requested to exceed the ideal ratio. The department, in consultation with the advisory board, shall establish written procedures for public guardian programs to obtain appropriate waivers regarding deviations in the ideal ratio of clients to paid staff. Procedures shall comply with §§ 51.5-150 and 51.5-151 of the Code of Virginia. The department shall report waiver requests and status of granted waivers to the advisory board at its regularly scheduled meetings. The department shall review such waivers every six months to ensure that there is no immediate threat to the person or property of any client and that exceeding the ideal ratio is not having or will not have a material and adverse effect on the ability of the public guardian program to properly serve all of the clients it has been designated to serve.

3. Volunteers.

a. Volunteers may be recruited and used to supplement paid staff. However, volunteers shall not be counted in the client to staff ratio.

b. Volunteers may not exercise the authority of a public guardian or conservator.

c. Each public guardian program that uses volunteers shall develop and implement written procedures for volunteer management and supervision.

D. Multidisciplinary panel.

1. Each public guardian program shall establish a multidisciplinary panel to (i) screen cases, consistent with subdivision 3 of this subsection, for the purpose of ensuring that appointment of a public guardian or public conservator is appropriate under the circumstances and is the least restrictive alternative available to assist the incapacitated person, and (ii) annually review cases being handled by the program to ensure that a public guardian or conservator appointment remains appropriate.

2. Composition of a multidisciplinary panel shall include representatives from various human services agencies serving the city, county, or region where the public guardian program accepts referrals. To the extent appropriate disciplines are available, this panel may include representation from:

a. Local departments of social services, including adult protective services;

b. Community services boards or behavioral health authorities;

c. Attorneys licensed by the Virginia State Bar;

d. Area agencies on aging;

e. Local health departments;

f. Nursing home, assisted living, and group home administrators;

g. Physicians; and

h. Other community representatives.

3. Prior to the public guardian program accepting an individual for services, the multidisciplinary panel shall screen referrals to ensure that:

a. The public guardian program is appointed as guardian, or conservator, or both only in those cases where public guardianship or public conservatorship is the least restrictive alternative available to assist the individual;

b. The public guardian program has the resources to serve the individual, and the appointment of the public guardian program is consistent with the established priorities of the public guardian program;

c. The individual cannot adequately care for himself;

d. The individual is indigent; and

e. There is no other proper or suitable person or entity to serve as guardian.

f. In the case of an individual who receives case management services from a community services board or behavioral health authority , the multidisciplinary panel may also request the results of the "determination of capacity" as authorized by 12VAC35-115-145 (Determination of capacity to give consent or authorization) and verification that no other person is available or willing to serve as guardian pursuant to 12VAC35-115-146 E (Authorized representatives).

4. In the event the multidisciplinary panel determines that the referred individual should be accepted as a client, the panel shall further consider what, if any, limitations should be imposed on the powers of the public guardian or public conservator to ensure that the powers and duties assigned are the least restrictive necessary. Any such limitations recommended by the multidisciplinary panel shall be communicated to the person or entity that made the referral and to the guardian ad litem appointed in any court proceeding pursuant to Chapter 20 (§ 64.2-2000 et seq.) of Title 64.2 of the Code of Virginia in which the public guardian program has been recommended as the guardian, conservator, or both.

5. The multidisciplinary panel shall review active cases at least once every 12 months to determine that:

a. The client continues to be incapacitated;

b. The client continues to be indigent; and

c. There is no other proper or suitable person or entity to serve as guardian, conservator, or both.

E. Appointments.

1. Appointments by a circuit court shall name the public guardian program, rather than an individual person, as the public guardian, the public conservator or both , as applicable.

2. A public guardian program shall only accept appointments as public guardian, public conservator, or both that generate no fee or that generate a minimal fee.

F. Services.

1. A public guardian program shall have a continuing duty to seek a proper and suitable person who is willing and able to serve as guardian, conservator, or both for the client.

2. The public guardian program shall, at a minimum, have one face-to-face meeting with every client each calendar month.

3. The public guardian program shall encourage the client to participate in decisions, to act on his own behalf, and to develop or regain the capacity to manage his personal affairs to the extent feasible.

4. The public guardian program shall be guided by person-centered planning that:

a. Focuses on the expressed preferences, personal values, and needs of the client; and

b. Empowers and supports the client, to the extent feasible, in defining the direction for his life and promoting self-determination and community involvement.

5. To the maximum extent feasible, the person-centered planning process shall:

a. Include people chosen by the client;

b. Provide necessary information and support to enable the client to direct the process and to make informed choices and decisions;

c. Be timely and occur at times and locations convenient for the client;

d. In the case of an individual receiving case management services licensed or funded by the Department of Behavioral Health and Developmental Services, require participation and collaboration among the public guardian program, case managers, and service providers in meeting the client's planning goals;

e. Reflect the client's cultural values;

f. Offer choices to the client regarding the services the client receives and from whom the client receives those services; and

g. Include documentation of processes employed in and the outcomes of person-centered planning.

6. Each public guardian program shall set priorities with regard to services to be provided to clients in accordance with its contract with the department.

7. Each public guardian program shall develop written procedures and standards to make end-of-life decisions or other health-related interventions in accordance with the expressed desires and personal values of the client to the extent known. If expressed desires or personal values are unknown, then written procedures, including an ethical decision-making process, shall be used to ensure that the public guardian program acts in the client's best interest and exercises reasonable care, diligence and prudence on behalf of the client.

8. The public guardian program shall avoid even the appearance of a conflict of interest or impropriety when dealing with the needs of the client. Impropriety or conflict of interest arises where the public guardian program has some personal or agency interest that might be perceived as self-serving or adverse to the position or the best interest of the client. Examples include situations where the public guardian program provides services such as housing, hospice or medical care directly to the client.

9. Each public guardian program and its paid staff and volunteers are required to report any suspected abuse, neglect, or exploitation in accordance with § 63.2-1606 of the Code of Virginia, which provides for the protection of aged or incapacitated adults, mandates reporting, and provides for a penalty for failure to report.

Statutory Authority

§ 51.5-131 of the Code of Virginia.

Historical Notes

Former 22VAC5-30-30 derived from Virginia Register Volume 24, Issue 25, eff. January 1, 2009; amended and renumbered Virginia Register Volume 29, Issue 4, eff. November 22, 2012; Volume 33, Issue 2, eff. October 19, 2016; Volume 37, Issue 19, eff. June 25, 2021.

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