The Senate Judiciary Committee is considering a bill introduced by Sen. Monty Mason, D-Williamsburg, aimed at preventing ethical conflicts from arising in guardianship cases.
Mason was prompted by “Unguarded,” a three-part Richmond Times-Dispatch investigative series published in November, which revealed that VCU Health System and other health care providers in the Richmond region had taken hundreds of low-income patients to court and asked to have their lawyer appointed the patients’ guardian, putting him in charge of the person’s medical decision-making and finances.
The attorney frequently had the patients discharged from expensive hospital beds, placed in poorly rated nursing homes, maintained a list of up to 120 wards at a time and rarely visited them, the investigation found.
“I understand there’s a shortage of guardians,” Mason said in his testimony before the committee Monday morning. “What I’m trying to get at is ... if you come to the court on behalf of the hospital, you cannot then become the guardian to the person you’re trying to get out of the hospital.”
Mason referenced a fact exposed in the Times-Dispatch investigation that, in at least 13 cases, the lawyer resigned from being the patient’s guardian unless the person was admitted to VCU Health System again, in which case he could resume his authority.
“I am not making that up,” Mason said. “You ought not to be able to do that.”
Laura Rossacher, spokeswoman for VCU Health System, said that the health system does not take a position on Mason’s measure, Senate Bill 1072. She said last month that the health system is in conversations with community partners about possible collaborations on guardianship, but would not give further details.
“It’s one of the most horrific situations that I have ever seen,” said Sen. Joe Morrissey, D-Richmond. “It was shocking in all of its aspects.”
Morrissey said that he would have proposed legislation on the issue himself, but didn’t believe there was enough time to pull it together.
“It’s not the individual’s attorney who becomes the guardian; it’s the hospital’s attorney trying to kick the person out and then becomes the guardian,” clarified Sen. John Edwards, D-Roanoke, the committee chairman, who was learning of the scenario for the first time. “That’s a conflict of interest — a clear-cut case of a conflict of interest.”
Sen. Tommy Norment, R-James City, agreed.
“I support what Senator Mason is trying to do,” Norment said. “In the practice of law, there is a very fundamental caveat and that is to avoid even the appearance of impropriety, and at a minimum, that is the threshold of this situation.”
Sen. Scott Surovell, D-Fairfax, said that he agreed with the spirit of the bill, but thought that the language was too broad and would ultimately raise costs for guardianship cases without conflict. He suggested focusing the bill to hospital-sponsored guardianship petitions.
The Office of the Executive Secretary of the Supreme Court of Virginia did not take a position on the policy proposed by the bill, but had technical concerns, including that some rural jurisdictions may have no eligible guardians for incapacitated people under the proposed law.
The committee instructed Mason to work with the Office of the Executive Secretary to refine the bill and to come back with amendments on another day.