22VAC30-70-30. Public guardian programs.
A. Designation. The department shall select public guardian
programs in accordance with the requirements of the Virginia Public Procurement
Act. Only those programs that contract with the department
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 as a guardian and conservator, shall have all
the powers and duties specified in
Article 1 (§ 37.2-1000 et seq.) of
Chapter 10 of Title 37.2 Chapter 20 (§ 64.2-2000 et seq.) of Title
64.2 of the Code of Virginia, except as otherwise specifically limited by a
1. Each public guardian program shall have a program director
who supervises and is responsible for providing guardianship services to any
incapacitated persons assigned by the court and to provide overall
administration for the public guardian program. The program director
shall be a full-time employee of the program and have experience as a
service provider or administrator in one or more of the following areas: social
work, case management, mental health, nursing or other human service programs.
The program director must shall also demonstrate, by objective
criteria, a knowledge and understanding of Virginia's guardianship laws,
alternatives to guardianship, and surrogate decision making activities. The
program director shall attend all training and activities required by the
2. Each public guardian program shall establish a multidisciplinary panel to (i) screen cases for the purpose of ensuring that appointment of a guardian or conservator is appropriate under the circumstances and is the least restrictive alternative available to assist the incapacitated person. This screening shall include a duty to recommend the most appropriate limitations on the power of the guardian or conservator, if any, to ensure that the powers and duties assigned are the least restrictive, and (ii) annually review cases being handled by the program to ensure that a guardian or conservator appointment remains appropriate. Composition of a multidisciplinary panel should include representatives from various human services agencies serving the city, county, or region where the public guardian program accepts referrals. If serving a region, the multidisciplinary panel shall have at least one representative from each local jurisdiction within the region. To the extent appropriate disciplines are available, this panel should include but is not limited to representation from:
a. Local departments of social services, adult protective services;
b. Community services boards or behavioral health authorities;
An attorney 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; and
g. Physicians and community representatives.
D. Client ratio to paid staff.
1. 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 incapacitated persons to every one paid full-time staff person 20:1.
2. Each public guardian program shall have in place a plan to
immediately provide notice to the circuit
court(s) court or courts
in its jurisdiction and to the department when the program determines that it
may exceed its ideal ratio of clients to paid staff.
3. In an emergency or unusual circumstance, each program, in its discretion, may exceed the department's established ideal ratio by no more than five additional incapacitated persons. Each 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 20:1. 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 department's established 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 incapacitated person nor that exceeding the department's established ideal ratio is having or will have a material and adverse effect on the ability of the program to properly serve all of the incapacitated persons it has been designated to serve.
1. Prior to the public guardian program accepting an individual
for services, the multidisciplinary panel described in
C 2 of this section shall screen referrals to ensure that:
a. The public guardian program is appointed as guardian, or conservator, or both only in those cases where guardianship or conservatorship is the least restrictive alternative available to assist the individual;
b. The appointment is consistent with serving the type of client identified by 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 (CSB) or behavioral health authority (BHA), 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).
2. Appointments by a circuit court shall name the public guardian program, rather than an individual person, as the guardian, the conservator or both guardian and conservator.
3. A public guardian program shall only accept appointments as guardian, conservator, or both guardian and conservator that generate no fee or that generate a minimal fee.
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 guardian and conservator for the incapacitated person.
2. The guardian or conservator shall encourage the incapacitated person 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.
3. The guardian or conservator shall be guided by person-centered planning that:
a. Focuses on the expressed preferences, personal values, and needs of the individual receiving public guardian program services; and
b. Empowers and supports the individual receiving public guardian program services, to the extent feasible, in defining the direction for his life and promoting self-determination and community involvement.
4. To the maximum extent feasible, the person-centered planning process shall:
a. Include people chosen by the individual;
b. Provide necessary information and support to enable the individual to direct the process and to make informed choices and decisions;
c. Be timely and occur at times and locations convenient for the individual;
[ d. Require participation and collaboration, in the case of an individual receiving case management services licensed or funded by the Department of Behavioral Health and Developmental Services, among the guardian or conservator, case managers, and providers in meeting the individual's planning goals, in conformity with the guardian or conservator's court order;
d. e. ] Reflect the individual's
e. f. ] Offer choices to
the individual regarding the services the individual receives and from whom the
individual receives those services; and
f. g. ] Include
documentation of processes employed in and the outcomes of person-centered
planning. 3. 5. The multidisciplinary panel described in 22VAC30-70-30
subdivision C 2 of this section 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 guardian and conservator.
4. 6. Each public guardian program shall set
priorities with regard to services to be provided to incapacitated persons in
accordance with its contract with the department. 5. 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 incapacitated person 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 guardian or
conservator acts in the incapacitated person's best interest and exercises
reasonable care, diligence and prudence on behalf of the client. 6. 8. The public guardian program shall avoid
even the appearance of a conflict of interest or impropriety when dealing with
the needs of the incapacitated person. 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 incapacitated person. Examples include, but are not limited to,
situations where the public guardian program provides services such as housing,
hospice or medical care directly to the client. The department reserves the
right to monitor all administrative, programmatic, and financial activities
related to the public guardian program to ensure compliance with the terms of
the contract between the department and the public guardian program. 7. 9. Each public guardian program and its
employees are required to report any suspected abuse, neglect, or exploitation
in accordance with § 63.2-1606 of the Code of Virginia, that which
provides for the protection of aged or incapacitated adults, mandates
reporting, and provides for a penalty for failure to report. 8. 10. Each public guardian program shall submit
data and reports as required by the department and maintain compliance with the
department's program guidelines. The department shall periodically monitor
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 public guardian program and the department.