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2001 SESSION

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012246772
HOUSE BILL NO. 1702 Offered January 10, 2001 Prefiled December 18, 2000 A BILL to amend and reenact §§ 37.1-134.8 and 37.1-134.9 of the Code of Virginia, relating to appointment of a guardian ad litem for an incapacitated person. ---------- Patron-- Howell ---------- Referred to Committee for Courts of Justice ----------

Be it enacted by the General Assembly of Virginia:

1. That §§ 37.1-134.8 and 37.1-134.9 of the Code of Virginia are amended and reenacted as follows:

§ 37.1-134.8. 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 petitioner's 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 respondent's name, date of birth, place of residence or location, social security number, and post office address.

2. The names and post office addresses of the respondent's 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 step-children. 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.

3. 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 respondent's care or custody.

4. 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, or any guardian, committee or conservator currently acting, whether in this state or elsewhere, and the petitioner shall attach a copy of any such documents, if available.

5. The type of guardianship or conservatorship requested and a brief description of the nature and extent of the respondent's alleged incapacity; when the petition requests appointment of a guardian, a brief description of the services currently being provided for the respondent's health, care, safety, or rehabilitation and, where appropriate, a recommendation as to living arrangement and treatment plan; 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.

6. The name and post office address of any proposed guardian or conservator or any guardian or conservator nominated by the respondent, and that person's relationship to the respondent.

7. The native language of the respondent and any necessary alternative mode of communication.

8. A statement of the financial resources of the respondent which shall, to the extent known, list the approximate value of the respondent's property and the respondent's anticipated annual gross income and other receipts, and debts.

9. A statement of whether the petitioner believes that the respondent's attendance at the hearing would be detrimental to the respondent's health, care or safety.

10. A request for appointment of a guardian ad litem.

§ 37.1-134.9. Appointment of guardian ad litem for an incapacitated person.

A. On the filing of every petition for guardianship or conservatorship, the court shallmay appoint a guardian ad litem to represent the interests of the respondent and, if the value of the respondent's estate is more than $5,000, shall appoint a guardian ad litem. The guardian ad litem shall be paid such fee as is fixed by the court to be paid by the petitioner or taxed as costs, as the court directs.

B. Duties of the guardian ad litem include: (i) personally visiting the respondent; (ii) advising the respondent of rights pursuant to §§ 37.1-134.12 and 37.1-134.13, and certifying to the court that the respondent has been so advised; (iii) recommending that legal counsel should be appointed for the respondent, pursuant to § 37.1-134.12, if the guardian ad litem believes that counsel for the respondent is necessary; (iv) investigating the petition and evidence, requesting additional evaluation if necessary, and filing a report pursuant to subsection C; and (v) personally appearing at all court proceedings and conferences.

C. In the report required by subsection B (iv), the guardian ad litem shall address the following major areas of concern: (i) whether the court has jurisdiction; (ii) whether or not a guardian or conservator is needed; (iii) the extent of the duties and powers of the guardian or conservator, e.g., personal supervision, financial management, medical consent only; (iv) the propriety and suitability of the person selected as guardian or conservator, after consideration of geographic location, familial or other relationship with the respondent, ability to carry out the powers and duties of the office, commitment to promoting the respondent's welfare, any potential conflicts of interests, wishes of the respondent, and recommendations of relatives; (v) a recommendation as to the amount of surety on the conservator's bond; if any; and (vi) consideration of proper residential placement of the respondent.