SD23 - Public Guardianship: Program Design Options for Virginia

  • Published: 1990
  • Author: Department of Social Services
  • Enabling Authority: Senate Document 29 (1988)

Executive Summary:
The 1988 Session of the Virginia General Assembly issued Senate Document Number 29 and instructed the Virginia Department of Social Services to examine the concept of public guardianship as a service of last resort. This report responds to that directive. Guardianship is a legal relationship in which the State, through the circuit court, removes from a person (the ward) the right to make decisions. Decision-making authority is then given by the court to another adult (the guardian).Court appointment of a guardian signifies a dramatic reduction in the basic civil rights of the ward. Families of Virginia's incapacitated adults and providers who serve those adults are acutely aware of the tremendous responsibilities inherent in the role of a guardian.

The increasing demand for guardians can be attributed to several national and State trends including the growing number of persons reaching advanced old age. Interest in public guardianship is related to an insufficient number of people available to meet the demand. In situations where a guardian is not available or not performing in the best interest of the ward, the lack of persons available to serve as guardians can result in extreme suffering and even loss of life. A public guardian is a public employee whose job responsibility is to serve as a guardian and thereby assure the availability of a person to assume guardianship when the service is needed and is not otherwise available.

This report uses data collected from a variety of sources including: 1) the Virginia Department of Social Services' Task Force on Guardianship; 2) a survey of other states; 3) interviews with State and national experts on public guardianship; and 4) a literature review.

There is no authoritative data on the number of adults needing a public guardian. However, two recent studies began to document the extent of need for guardians. The Department of Social Services' 1988 Task Force report, "A Study of Guardianship in Virginia," identified 2,174 adults who need a guardian and for whom no guardian is available. In 1988, the Joint Subcommittee studying Legal Guardianship surveyed Community Services Boards and facilities operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services and identified 2,649 persons needing a guardian. Some duplication may exist between the two studies.

Family, volunteers, and private guardians continue to be the primary source of guardians. However, these sources are insufficient to meet the need for the increasing number of vulnerable adults. The lack of a guardian can result in continued abuse, neglect, or exploitation.

In formulating design options for a public guardianship program, consideration was given to: 1) the target population; 2) essential components to safeguard the rights of wards; and 3) administrative structures.

A public guardianship program should serve the most vulnerable adult population without regard to age, cause of disability, living arrangement, or income. The participating State agencies and members of the Guardianship Task Force agree that a Virginia public guardianship program should target Adult Protective Services recipients. As a group, adults needing protective services are older and more frail than the general adult population. They have multiple physical and mental health problems and are less likely to have family and friends available.

The following components are identified as essential to safeguard the rights of adults and to ensure a high quality, responsive public guardianship program:

1) emphasis on alternatives to guardianship;
2) standardized eligibility criteria;
3) multidisciplinary assessment/reassessment;
4) clear roles for human resource agencies;
5) use of volunteers;
6) due process protections;
7) ongoing case monitoring;
8) minimum standards of performance;
9) public education/professional development; and,
10) use of an interagency advisory board.

Five administrative structures based on other states' experiences were considered in this study. They were: 1) public guardianship provided by the Virginia Department of Social Services with local departments of social services responsible for referral, assessment and for ongoing casework service; 2)guardianship services through state-initiated contracts with public and/or private service providers; 3) a new and freestanding agency of public guardianship in the Secretariat of Health and Human Resources; 4) guardianship provided by volunteers who are recruited, trained, and monitored by State agencies; and 5) guardianship provided by the circuit court.

The Departments of Social Services, Aging, Rights of the Disabled, Mental Health, Mental Retardation and Substance Abuse Services, and the Department of Social Services' Task Force on Guardianship agree on the target population, the essential program components, and the need to move forward with a two-year pilot project.

The purpose of the pilot is to test the feasibility and appropriateness of utilizing the Department of Social Services to provide public guardianship and to gather data not currently available in order to design a long-range plan for statewide implementation. The proposed pilot project will be located in one of the seven Virginia Department of Social Services' regions. The region will be selected in collaboration with the Virginia Department for the Aging for the purpose of coordinating two related projects; i.e., public guardianship (Virginia Department of Social Services) and alternatives to guardianship (Virginia Department for the Aging). Both the Department of Social Services and the Department for the Aging have requested funding in the 1990-92 biennium for these projects.

The proposed pilot will at any one time serve 80 of Virginia's most vulnerable adults -- incapacitated adults who are abused, neglected or exploited as defined in the Adult Protective Services Statutes (Section 63.1-55.1 of the Code of Virginia). Additional criteria are related to the appropriateness of alternatives, the availability of other sources of guardians, financial resources, documentation of need by a multi-disciplinary assessment, and findings of the circuit court.

The process for the appointment of a public guardian, during the pilot project, would include the following four steps:

Step I--Investigation and Screening: As a part of the adult protective services investigation, local departments of social services will screen incapacitated adults to determine the appropriateness of alternative services, the availability of private guardians, and whether the client meets criteria for public guardianship.

Step II--Petitioning and Assessment: The local department of social services will petition the court for guardianship and will request a court-ordered assessment and a waiver of court costs. The petition will identify those professionals essential for a comprehensive multi-disciplinary assessment. The written assessment will be submitted to the court at least five working days prior to the guardianship proceedings.

Step III--Court Hearing and Appointment: The professionals involved in the assessment shall be available to the court, as appropriate, during the hearing. The public guardian will attend the hearing.

Step IV--Service Delivery/Reassessment: The public guardian will file an account of the ward's estate with the Commissioner of Accounts and will serve as decision-maker within the scope defined by the court. Reassessment of the need for continued guardianship will be done at least annually.

The evaluation of the pilot project is expected to result in recommendations about: 1) the need for a public guardianship program; 2) the types of guardian services needed; 3) the number of people needing a guardian; 4) statewide cost projections for providing public guardian services; 5) the appropriateness of providing public guardianship through the Department of Social Services; and 6) the possible alternatives to public guardianship services.

The evaluation design will utilize a selected "control" group of localities within the pilot region, a group of localities offering public guardianship services, and a group of localities offering both public guardianship and alternative services. As a part of the evaluation, court record data will be analyzed to determine the effect the guardianship pilot has on the number of people referred and the types of services they need. Statewide cost projections will be made based on the data collected during the pilot.

The funding needed to accomplish the public guardianship pilot will pay for three items: public guardian staff, a fund for emergency services, and bonding costs for the public guardians. Each item is listed below by fiscal year:

I. Guardian Staff (salary, benefits, operations)
FY91: $155,480 / FY92: $181,435

II. Emergency Services Fund
FY91: $53,320 / FY92: $53,320

III. Bonding Costs
FY91: $3,000 / FY92: $3,000

TOTAL (General Fund)
FY91: $211,800 / FY92: $237,755

As a result of the Study, the following recommendations are presented:

• the ten essential components identified in this document and described in Appendix B be incorporated into Virginia's public guardianship design;

• public guardianship services be targeted to the most vulnerable adult population; i.e., incapacitated adults who are abused, neglected, or exploited or at risk of abuse, neglect, or exploitation;

• the Department of Social Services' amended Addendum Budget Proposal for Public Guardianship be funded in the 1990-92 biennium to allow a two-year pilot project to begin providing public guardianship services and to gather data for long-range planning.