Administrative Code

Virginia Administrative Code
9/28/2021

Chapter 70. The Virginia Public Guardian and Conservator Program

22VAC30-70-10. Definitions.

The following words and terms when used in this regulation shall have the following meaning unless the context clearly indicates otherwise:

"Advisory board" means the Virginia Public Guardian and Conservator Advisory Board as authorized by §§ 51.5-149.1 and 51.5-149.2 of the Code of Virginia.

"Client" means a person who has been adjudicated incapacitated and who is receiving public guardian or conservator services from a public guardian program.

"Conservator" means a person appointed by a court who is responsible for managing the estate and financial affairs of an incapacitated person and, where the context plainly indicates, includes a "limited conservator" or a "temporary conservator." The term includes (i) a local or regional program designated by the Department for Aging and Rehabilitative Services as a public conservator pursuant to Article 6 (§ 51.5-149 et seq.) of Chapter 14 of Title 51.5 of the Code of Virginia or (ii) any local or regional tax-exempt charitable organization established pursuant to § 501(c)(3) of the Internal Revenue Code to provide conservatorial services to incapacitated persons. Such tax-exempt charitable organization shall not be a provider of direct services to the incapacitated person. If a tax-exempt charitable organization has been designated by the Virginia Department for Aging and Rehabilitative Services as a public conservator, it may also serve as a conservator for other individuals.

"Department" means the Department for Aging and Rehabilitative Services.

"Face-to-face" means an in-person meeting with the client.

"Guardian" means a person appointed by a court who is responsible for the personal affairs of an incapacitated person, including responsibility for making decisions regarding the person's support, care, health, safety, habilitation, education, therapeutic treatment, and, if not inconsistent with an order of involuntary admission, residence. Where the context plainly indicates, the term includes a "limited guardian" or a "temporary guardian." The term includes (i) a local or regional program designated by the department as a public guardian pursuant to Article 6 (§ 51.5-149 et seq.) of Chapter 14 of Title 51.5 of the Code of Virginia or (ii) any local or regional tax-exempt charitable organization established pursuant to § 501(c)(3) of the Internal Revenue Code to provide guardian services to incapacitated persons. Such tax-exempt charitable organization shall not be a provider of direct services to the incapacitated person. If a tax-exempt charitable organization has been designated by the department as a public guardian, it may also serve as a guardian for other individuals.

"Incapacitated person" means 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 his 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 incapacitated shall be construed as a finding that the person is "mentally incompetent" as that term is used in Article II, Section 1 of the Constitution of Virginia and Title 24.2 of the Code of Virginia unless the court order entered pursuant to Chapter 20 (§ 64.2-2000 et seq.) of Title 64.2 of the Code of Virginia specifically provides otherwise.

"Indigent" means a person who (i) is eligible for or receiving state-funded or federally-funded public assistance benefits whose eligibility for such benefits is based in whole or part upon an evaluation of their income against federal poverty guidelines, (ii) as otherwise defined in § 19.2-159 of the Code of Virginia, or (iii) whose resources have been determined by a Virginia circuit court to be so limited as to satisfy the criteria for appointment of a public guardian, public conservator, or both set forth in § 64.2-2010 of the Code of Virginia.

"Least restrictive alternatives" means, but is not limited to money management services including bill payer and representative payee services, care management, and services provided pursuant to a financial or health care power of attorney.

"Minimal fee" means allowable fees collected or payable from government sources and shall not include any funds from an incapacitated person's estate.

"Public guardian program" means the program operated by the public guardian program contractor pursuant to a contract with the department to provide public guardianship services, public conservatorship services, or both pursuant to Article 6 (§ 51.5-149 et seq.) of Chapter 14 of Title 51.5 of the Code of Virginia. For the purposes of this chapter, a regional public guardian program shall be equivalent to a local public guardian program.

"Public guardian program contractor" means a legal entity with whom the department has entered into a contract to operate a public guardian program.

"Virginia Public Guardian and Conservator Program" means the statewide program administered by the department pursuant to Article 6 (§ 51.5-149 et seq.) of Chapter 14 of Title 51.5 of the Code of Virginia and operationalized through a network of public guardian program contractors under contract with the department.

"Volunteer" means a person, including an unpaid intern, who works with the public guardian program and:

1. Is not paid for services provided to the public guardian program; and

2. Is not counted in the client-to-staff ratio.

Statutory Authority

§ 51.5-131 of the Code of Virginia.

Historical Notes

Former 22VAC5-30-10 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 37, Issue 19, eff. June 25, 2021.

22VAC30-70-20. Introduction and purpose.

A. Introduction. Pursuant to § 51.5-149 of the Code of Virginia, the General Assembly declared that the policy of the Commonwealth is to ensure that persons who cannot adequately care for themselves because of incapacity are able to meet essential requirements for physical and emotional health and management of financial resources with the assistance of a guardian or conservator, as appropriate, in circumstances where (i) the incapacitated person's financial resources are insufficient to fully compensate a private guardian or conservator and pay court costs and fees associated with the appointment proceeding, and (ii) there is no other proper and suitable person willing and able to serve in such capacity or there is no guardian or conservator appointed within one month of adjudication pursuant to § 64.2-2015 of the Code of Virginia.

B. Purpose. This regulation sets forth requirements for the Virginia Public Guardian and Conservator Program and establishes the requirements for public guardian program contractors to operate a designated public guardian program.

Statutory Authority

§ 51.5-131 of the Code of Virginia.

Historical Notes

Former 22VAC5-30-20 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 37, Issue 19, eff. June 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.

22VAC30-70-40. Personnel standards.

A. Each paid staff who is working in the public guardian program and has direct contact with clients or client estates shall:

1. Have a satisfactory work record and be of good character; demonstrate a concern for the well-being of others to the extent that the person is considered suitable to be entrusted with the care, guidance, and protection of an incapacitated person; and shall not have been convicted of any criminal offense involving any physical attack, neglect or abuse of a person, lying, cheating, or stealing, nor convicted of any felony. A criminal record check shall be conducted on each person hired on or after January 1, 2009.

2. Be free of illegal drug use . For each person hired on or after January 1, 2009, a drug screening test shall be conducted.

3. Each person hired on or after January 1, 2009, shall have, at a minimum , a high school diploma or a general education diploma (GED) from an accredited program .

4. Participate in mandatory training programs required by the department.

5. In addition, each program director shall:

a. Be a full-time employee of the public guardian program;

b. Have experience as a service provider or administrator in one or more of the following areas: (i) social work, (ii) case management, (iii) mental health, (iv) nursing, (v) or other human service program; and

c. Demonstrate, by objective criteria, a knowledge and understanding of Virginia's guardianship laws, alternatives to guardianship, and surrogate decisionmaking activities.

B. Prior to having direct contact with any clients or client estates, each paid staff of the public guardian program shall complete a training and orientation program. The training and orientation program shall include instruction on the following topics:

1. Virginia's guardianship laws and alternatives to guardianship, including the duties and powers of guardians and conservators in Virginia;

2. Surrogate decision-making and how it differs from substituted judgment decisionmaking standards;

3. The reporting requirements to the local department of social services and Commissioner of Accounts where applicable, mandated in §§ 64.2-1305 and 64.2-2020 of the Code of Virginia;

4. Working with special needs populations including individuals with physical and mental disabilities;

5. The provisions governing the operations of the Virginia Public Guardian and Conservator Program set forth in Article 6 (§ 51.5-149 et seq.) of Chapter 14 of Title 51.5 of the Code of Virginia and all ensuing applicable regulations and related policies and procedures issued by the department;

6. The policies and procedures of the public guardian program including:

a. Privacy and confidentiality requirements;

b. Recordkeeping;

c. Services provided and the standards for services; and

d. Indications of and actions to be taken when adult abuse, neglect, or exploitation is suspected.

C. Each person serving as a public guardian program volunteer with direct contact with any client or client estates shall comply with the provisions of subdivisions A 1 and A 2 of this section. In addition, prior to having direct contact with any client or client estates, each volunteer shall complete an orientation program that provides an overview of:

1. The Virginia Public Guardian and Conservator Program (§ 51.5-149 of the Code of Virginia); and

2. The local public guardian program for which the person intends to serve as a volunteer, including (i) services provided by the public guardian program, (ii) specific duties of the volunteer, (iii) privacy and confidentially requirements, (iv) recordkeeping and documentation requirements, and (v) indications of and action to be taken where adult abuse, neglect, or exploitation is suspected.

Statutory Authority

§ 51.5-131 of the Code of Virginia.

Historical Notes

Former 22VAC5-30-40 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 37, Issue 19, eff. June 25, 2021.

22VAC30-70-50. Recordkeeping.

A. Each public guardian program shall maintain an accurate and complete client record for each incapacitated person. Records shall be kept confidential. Access to client records shall be limited to (i) the client's public guardian or conservator as designated by a Virginia circuit court; (ii) as otherwise directed by court order; (iii) as directed by duly authorized government authorities ; and (iv) as specifically authorized by the Code of Virginia or federal statutes, including by written consent of the client's public guardian or conservator. Provision shall be made for the safe storage of client records or accurate and legible reproductions for a minimum of five years following termination of the guardian or conservator court order.

B. Each client's record shall contain a current Virginia Uniform Assessment Instrument (UAI) or a similar comprehensive assessment instrument, a current public guardian program care plan, a current values history, the most recent annual report of the guardian submitted to the Department of Social Services as required by § 64.2-2020 of the Code of Virginia, the most recent annual accounting by the conservator to the Commissioner of Accounts as required by § 64.2-1305 of the Code of Virginia, and all applicable court orders and petitions. A client's record shall be completed and on file within 60 days of the public guardian program's appointment as public guardian, public conservator, or both.

C. Each public guardian program contractor shall maintain all records, provide reports, including audit information and documents in accordance with its contract with the department.

Statutory Authority

§ 51.5-131 of the Code of Virginia.

Historical Notes

Former 22VAC5-30-50 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 37, Issue 19, eff. June 25, 2021.

22VAC30-70-60. Evaluation and monitoring of public guardian programs.

A. Each public guardian program shall submit data and reports as required by the department and maintain compliance with the department's program guidelines.

B. The department reserves the right to monitor all administrative, programmatic, and financial activities related to the public guardian program, including person-centered planning utilization and documentation, to ensure compliance with the terms of the contract between the department and the public guardian program contractor.

C. The department shall periodically administer, monitor, evaluate, provide technical assistance and expertise, and shall ensure fiscal accountability and quality of service of public guardian programs.

Statutory Authority

§ 51.1-131 of the Code of Virginia.

Historical Notes

Former 22VAC5-30-60 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 37, Issue 19, eff. June 25, 2021.

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