Levine’s guardianship visitation bill killed by Virginia Bar Association opposition

By Bridget Balch, Richmond Times-Dispatch 9 hrs ago

A bill proposed by Del. Mark Levine, D-Alexandria, aimed at giving loved ones stronger rights to challenge visitation restrictions imposed by the legal guardian of an incapacitated person was killed for the third straight year Friday after last-minute opposition from the Virginia Bar Association.

Levine had spent a year working with a stakeholder group that included elder law attorneys, the National Guardianship Association, AARP and Adult Protective Services, among others, to craft a bill that was acceptable to everyone. The bill was originally inspired by a constituent’s experience of being banned from visiting his longtime partner by her guardian.

But when Levine’s bill was heard in front of the House Courts of Justice Civil Subcommittee on Wednesday night, Shannon Laymon-Pecoraro, an elder law attorney representing the Virginia Bar Association — a nonprofit for attorneys focused on legislative advocacy — raised several objections and asked that the bill be delayed another year.

Language in the bill would shift the burden of proof for restricting visitation onto the guardian imposing it. It would allow the guardian to impose a seven-day restriction on someone the guardian believed to pose threat of significant harm to the person under guardianship, but also would allow the restricted person to challenge the restriction in court with an expedited hearing. In that hearing, the judge would have to find “clear and convincing evidence” that the restriction is warranted, and would have to consider limiting the restrictions as much as possible while preventing harm to the incapacitated person.

The bar association said in a list of reasons for opposing the bill: “There should be a fundamental trust and presumption that the guardian will take the appropriate action to [carry] out his duties. The bill as introduced creates a presumption against the guardian based on isolated incidents.”

The bar association also said that the bill should shift the burden of proof onto the restricted person to verify that the guardian’s decision to ban them from visiting a loved one was not warranted, rather than the other way around.

Levine said that the bar association’s proposals would make Virginia law worse for family members wanting to visit people under guardianship and would provide more protection to guardians.

“They did present me a measure that would take Virginia law and make it much, much harder for people to visit their family members with Alzheimer’s — harder than what is in current law, and said, basically, ‘take it or leave it,’ ” Levine told the subcommittee Friday afternoon. “These people do not want reform.”

Jeff Palmore, legislative counsel for the Virginia Bar Association, said that the association had attempted unsuccessfully to work with Levine since Wednesday’s subcommittee meeting to see if its concerns could be addressed.

“Whenever a guardian has been appointed, balancing the interests of the individual who requires a guardian and the interests of that person’s loved ones are very sensitive issues,” Palmore said in an email. “The VBA is solely focused on improving the law and making sure that the appropriate balance is reached in order to protect the person who cannot speak for themselves.”

Because Levine was not able to get the Virginia Bar Association on board, the subcommittee killed the bill in a 5-2 vote.

“I’m devastated,” said Yolanda Bell, a Manassas resident who said she was restricted from visiting her sister by a court-appointed professional guardian after she reported that she believed that her sister was being abused at her nursing home. “No one seems to care that people are being harmed, and people are being killed, they’re dying. … They’ve taken away that extra set of eyes [of family members]; it makes the abuse and all of that easier for it to happen.”

A Richmond Times-Dispatch three-part investigative series into guardianship revealed that VCU Health System and other health care providers were taking low-income patients to court and requesting that their own attorney be appointed the patient’s guardian. The guardianship orders gave the hospital’s attorney control over the patient’s medical decisions and finances.

Ten experts in the fields of guardianship, medical ethics, law and disability rights said that the arrangement of having the attorney representing hospitals and nursing homes also serving as guardian raises concerns about how independently he can look after the interests of the people placed under his guardianship.

“In my view, it’s not the professional lawyers that need more protection, it’s the incapacitated people — when an incapacitated person gets a guardian they lose all their rights,” Levine said. “It has long been my belief that the only protection an incapacitated person has is the eyes and ears and good wishes of their family members, their loved ones, their friends.”

Levine said that he was disappointed that the objections were raised at the last minute rather than being communicated to him during the lengthy process that included representatives from various organizations.

Palmore said that the Virginia Bar Association was not aware of Levine’s bill while the stakeholder meetings were going on.

“We aren’t trying to sabotage anything,” Palmore said. “We just want to make sure good policies get enacted for the people of the commonwealth.”

Levine says that he doesn’t see a way forward for the legislation next year but is hopeful that a Joint Legislative Audit and Review Commission study that he proposed, along with Del. Danica Roem, D-Prince William, could help shed light on a guardianship system that he says is broken.


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