The Department of Behavioral Health and Developmental Services (DBHDS) convened a workgroup to identify challenges faced by parents in becoming guardians for their adult children with intellectual and developmental disabilities (IDD). The report uses the term “guardian" to represent both guardianship and conservatorship unless otherwise indicated. The use of a single term to imply both processes was convenient as adults under guardianship who have sufficient income and/or assets typically also have a conservator.(*1)

The consensus of the workgroup was that there are two primary barriers that parents face when planning for the long-term support and guidance of their adult children with IDD. First, parents seeking to become guardians for their adult children with IDDs may be hindered by the cost of legal counsel needed for obtaining guardianship in cases where there are no less restrictive options for support. Second, some parents may also take on the responsibility of petitioning for and obtaining guardianship and its associated financial burden unnecessarily due to a lack of awareness of or access to less restrictive alternatives to guardianship.

In response to these identified barriers the workgroup recommends the following:

1. Virginia Code requirements for parents seeking to obtain guardianship of their children should not be changed. After extensive discussion and analysis, the workgroup concluded that requirements for obtaining guardianship as currently defined in the Code of Virginia are necessary safeguards for the civil rights of individuals with IDD regardless of their relationship to the individual petitioning for guardianship.

2. The Code should be amended to include petitioner’s cost of counsel in court costs covered by the Commonwealth when the respondent is found to be indigent, and the petitioner is the parent of the respondent. Costs of counsel incurred by respondents seeking to remove guardianships they are under, as well as those of petitioners seeking to remove guardianships when they are next-of-kin of the individual under guardianship, should also be covered by the Commonwealth when the respondent is found to be indigent. Currently, the respondent is responsible for covering all “reasonable costs and fees" of the petitioner so long as the court finds that the petitioner is acting in good faith(*2). However, in cases where the petitioner is the parent of the respondent, the respondent is typically indigent. When the court finds that the respondent is indigent the Commonwealth pays for the court fees, guardian ad litem fees, and the cost of the respondent’s council, however the Commonwealth does not cover the cost of the petitioner’s counsel(*3). Costs of council for respondents or petitioners seeking to remove guardianships are also not covered by the Commonwealth regardless of their ability to pay. Such costs may pose a barrier to removing guardianships when they are not necessary.

3. Stakeholder awareness of less restrictive alternatives to guardianship should be enhanced through continued investment in the expansion of educational programming and resources. While DBHDS and organizations such as the Arc of Virginia and the disAbility Law Center of Virginia already provide education regarding less restrictive alternatives to guardianship, continuing to expand the availability of educational materials and training is critical to ensuring that all stakeholders understand all options for support.

4. Awareness of and access to less restrictive alternatives should also be improved through the creation of a standardized template for capacity evaluations. Such a template should include the legal definition of capacity for the practitioner’s reference while conducting evaluations, and options for identifying areas of capacity and limited capacity and the opportunity to recommend less restrictive alternatives to full guardianship including supported decision-making agreements. Currently, there is no standardized template for capacity evaluations. Improving the evaluation process will help to ensure that individuals with intellectual and developmental disabilities are supported by the least restrictive means possible. It will likely also reduce the number of parents who need to go through the time intensive and financially burdensome process of obtaining guardianship of their adult child.

5. The workgroup recommends that language accessible durable power of attorney forms be created. Currently, there is no standard durable power of attorney form in the Commonwealth. The creation of a language accessible durable power of attorney form would support the need identified by the workgroup to make less restrictive alternatives to guardianship more accessible.
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(*1) JLARC, “Improving Virginia’s Guardian and Conservator System". The Joint Legislative Audit and Review Commission. (October 18, 2021). p. i
(*2) Code of Virginia § 64.2-2008
(*3) Code of Virginia § 64.2-2008