|Introduced in House||Passed House||Introduced in Senate||Passed Senate||Became Law|
Guardianship; appointment of counsel for respondent, presence of respondent at hearings.
Provides that a court shall appoint counsel for a respondent upon the filing of a petition seeking guardianship if the respondent is not represented by counsel. Under current law, court appointment of counsel is discretionary. The bill further provides that, except for good cause shown, a respondent shall be present at a hearing and given an opportunity to be heard on a petition to appoint a guardian and at all other stages of the guardianship proceedings. Under current law, the respondent shall be present if he requests to be present or if his presence is requested by the guardian ad litem. The bill further provides that a court shall require a petitioner to pay or reimburse the respondent's costs and fees if the court finds that the petitioner initiated a guardianship proceeding in bad faith or not for the benefit of the respondent and prohibits a petitioner from initiating any other guardianship or conservatorship proceeding. Under current law, payment or reimbursement is discretionary. The bill further requires that a petitioner certify in the petition for appointment as guardian, conservator, or both that he has notified certain relatives of the respondent of his intent to petition the court to act as such guardian, conservator, or both, and that such relatives have waived their right to serve in such a capacity and instead designate such petitioner to serve in such a capacity.
Be it enacted by the General Assembly of Virginia:
� 64.2-2002. Who may file petition; contents.
A. Any person may file a petition for the appointment of a guardian, a conservator, or both.
B. A petition for the appointment of a guardian, a conservator, or both, shall state the petitioners name, place of residence, post office address, and relationship, if any, to the respondent and, to the extent known as of the date of filing, shall include the following:
1. The respondents name, date of birth, place of residence or location, post office address, and the sealed filing of the social security number;
2. The basis for the courts jurisdiction under the provisions of Article 2 (� 64.2-2105 et seq.) of Chapter 21;
3. The names and post office addresses of the respondents spouse, adult children, parents, and adult siblings or, if no such relatives are known to the petitioner, at least three other known relatives of the respondent, including stepchildren. If a total of three such persons cannot be identified and located, the petitioner shall certify that fact in the petition, and the court shall set forth such finding in the final order. The petitioner shall further certify that the respondents spouse, adult children, parents, and adult siblings or, if no such relatives are known to the petitioner, at least three other known relatives of the respondent, including stepchildren, have (i) been notified of petitioners intent to petition for the appointment as a guardian, a conservator, or both; (ii) affirmatively waived their right and desire to serve as such guardian, or conservator, or both; and (iii) designated and support petitioner to become such guardian, conservator, or both;
4. The name, place of residence or location, and post office address of the individual or facility, if any, that is responsible for or has assumed responsibility for the respondents care or custody;
5. The name, place of residence or location, and post office address of any agent designated under a durable power of attorney or an advance directive of which the respondent is the principal, and any guardian, committee, or conservator currently acting, whether in this state or elsewhere, and the petitioner shall attach a copy of any such durable power of attorney, advance directive, or order appointing the guardian, committee, or conservator, if available;
6. The type of guardianship or conservatorship requested and a brief description of the nature and extent of the respondents alleged incapacity;
7. When the petition requests appointment of a guardian, a brief description of the services currently being provided for the respondents health, care, safety, or rehabilitation and, where appropriate, a recommendation as to living arrangements and treatment plan;
8. If the appointment of a limited guardian is requested, the specific areas of protection and assistance to be included in the order of appointment and, if the appointment of a limited conservator is requested, the specific areas of management and assistance to be included in the order of appointment;
9. The name and post office address of any proposed guardian or conservator or any guardian or conservator nominated by the respondent and that persons relationship to the respondent;
10. The native language of the respondent and any necessary alternative mode of communication;
11. A statement of the financial resources of the respondent that shall, to the extent known, list the approximate value of the respondents property and the respondents anticipated annual gross income, other receipts, and debts;
12. A statement of whether the petitioner believes that the respondents attendance at the hearing would be detrimental to the respondents health, care, or safety; and
13. A request for appointment of a guardian ad litem.
� 64.2-2006. Counsel for respondent.
The respondent has the right to be represented by counsel of
the respondents choice. If the respondent is not represented by counsel, the
shall appoint legal counsel upon the filing of the petition or at any time prior to the entry of the order
upon request of the respondent or the guardian ad litem, if the court
determines that counsel is needed to protect the respondents interest.
Counsel appointed by the court shall be paid a fee that is fixed by the court
to be taxed as part of the costs of the proceeding.
A health care provider shall disclose or make available to the attorney, upon request, any information, records, and reports concerning the respondent that the attorney determines necessary to perform his duties under this section, including a copy of the evaluation report required under � 64.2-2005.
� 64.2-2007. Hearing on petition to appoint.
A. The respondent is entitled to a jury trial upon request, and may compel the attendance of witnesses, present evidence on his own behalf, and confront and cross-examine witnesses.
B. The court or the jury, if a jury is requested, shall hear
the petition for the appointment of a guardian or conservator. The hearing may
be held at such convenient place as the court directs, including the place
where the respondent is located. The hearing shall be conducted within 120 days
from the filing of the petition unless the court postpones it for cause. The
proposed guardian or conservator shall attend the hearing except for good cause
shown and, where appropriate, shall provide the court with a recommendation as
to living arrangements and a treatment plan for the respondent. The respondent
is entitled to be present at the hearing and all other stages of the
The Except for good cause shown, the respondent shall be present
if he so requests or if his presence is requested by the guardian ad litem and given an opportunity to be heard.
Whether or not present, the respondent shall be regarded as having denied the
allegations in the petition.
C. In determining the need for a guardian or a conservator and the powers and duties of any guardian or conservator, if needed, consideration shall be given to the following factors: (i) the limitations of the respondent; (ii) the development of the respondents maximum self-reliance and independence; (iii) the availability of less restrictive alternatives, including advance directives and durable powers of attorney; (iv) the extent to which it is necessary to protect the respondent from neglect, exploitation, or abuse; (v) the actions needed to be taken by the guardian or conservator; (vi) the suitability of the proposed guardian or conservator; and (vii) the best interests of the respondent.
D. If, after considering the evidence presented at the hearing, the court or jury determines on the basis of clear and convincing evidence that the respondent is incapacitated and in need of a guardian or conservator, the court shall appoint a suitable person, who may be the spouse of the respondent, to be the guardian or the conservator or both, giving due deference to the wishes of the respondent.
The court in its order shall make specific findings of fact and conclusions of law in support of each provision of any orders entered.
� 64.2-2008. Fees and costs.
A. The petitioner shall pay the filing fee set forth in
subdivision A 43 of � 17.1-275 and costs. Service fees and court costs may be
waived by the court if it is alleged under oath that the estate of the
respondent is unavailable or insufficient. If a guardian or conservator is
appointed and the court finds that the petition is brought in good faith and
for the benefit of the respondent, the court shall order that the petitioner be
reimbursed from the estate for all reasonable costs and fees if the estate of
the incapacitated person is available and sufficient to reimburse the
petitioner. If a guardian or conservator is not appointed and the court
nonetheless finds that the petition is brought in good faith and for the
benefit of the respondent, the court may direct the respondents estate, if
available and sufficient, to reimburse the petitioner for all reasonable costs
and fees. The court
may shall require the petitioner
to pay or reimburse all or some
of the respondents reasonable costs and fees and any other costs incurred
under this chapter if the court finds that the petitioner initiated a
proceeding under this chapter that was in bad faith or not for the benefit of
the respondent. If a court finds
that a petitioner initiated a proceeding under this chapter in bad faith or not
for the benefit of the respondent, such petitioner shall further
be fined and
be prohibited from initiating any other such
B. In any proceeding filed pursuant to this article, if the adult subject of the petition is determined to be indigent, any fees and costs of the proceeding that are fixed by the court or taxed as costs shall be borne by the Commonwealth.
|01/07/2020||House||House: Prefiled and ordered printed; offered 01/08/20 20104938D|
|01/07/2020||House||House: Referred to Committee for Courts of Justice|