Fact: The standards established by DARS for public guardianship services only apply to individuals
who are receiving public guardianship services as part of the Program. In Virginia, all guardianships are
established by Virginia circuit courts pursuant to orders that establish and define the powers of the
guardian. All public and private guardians are subject to the authority of the court, the requirements and
limitations included in the guardianship order, and the provisions of §§ 64.2-2000 et seq. of the Code of
Virginia. Only individuals receiving public guardianship services as part of the Program, however, are
protected by the provisions of §§ 51.5-149 et seq. of the Code of Virginia, 22VAC30-70, and the PGP
Provider’s contract with DARS.

Fact: A Virginia public guardian is contracted with DARS to provide public guardianship services to a specified number of individuals as part of the Program. Only a small portion of individuals under guardianship in Virginia received public guardianship services from a public guardian. In addition, not all of the guardianship clients served by PGP Providers are receiving public guardianship services. Several PGP Providers also operate private guardianship programs. In those instances, clients served as part of the PGP Provider’s private guardianship program are not part of the Program. To help ensure a clear distinction, each PGP Provider is required to (i) register with the Virginia State Corporation Commission a tradename for its public guardianship operations that includes the phrase “Public Guardian Program,” (ii) use that tradename on all documents signed on behalf of public guardian clients, and (iii) refrain from using that tradename in connection with services provided to any other individual.

Fact: Public guardians and their employees who interact with clients directly (“Guardian
Representatives”), are legal decision-makers who consent to, and oversee, the services provided to their clients. They also advocate for their clients’ needs. Guardian Representatives are not hands-on caregivers. Guardian Representatives are not required or expected to provide direct hands-on care. They are not substitutes for qualified providers of behavioral health services, long-term care, acute or primary care, or other health or personal care services.

Fact: Many referring entities request a public guardian in the hope of controlling the behaviors of a “difficult” individual. A public guardian is a legal decision-maker, but a public guardian cannot control the behaviors of clients. A public guardian can consent to medical care, arrange residential placement,
and consent to the provision of various social services. A public guardian, however, cannot force a client to take medication, keep a job, stop abusing substances, or terminate a relationship with a person they wish to see and have the ability to contact.
A legal determination that an individual is incapacitated and in need of a guardian is a substantial deprivation of an individual’s right to be in control of their own life that should be entered into conservatively. The Code of Virginia makes clear in the definition of “incapacitated person” that a determination that a person is incapacitated should be reserved for situations in which the individual “has been found by a court to be incapable [emphasis added] of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator” (§ 64.2-2000 of the Code of Virginia). The definition goes on to state, “A finding that the individual displays poor judgment alone shall not be considered sufficient evidence that the individual is an incapacitated person within the meaning of this definition.” Whether an individual is appointed a guardian should not be based on whether a guardian would
exercise “better:” judgement than the allegedly incapacitated individual, but whether the individual truly lacks capacity to make essential decisions for themselves.

Fact: The Program is not structured to serve as an emergency provider of guardianship services. Many situations can occur that give rise to a potential need for an emergency guardianship (e.g., the death of an existing guardian or a family caretaker, a young adult aging out of foster care, a hospital or a residential facility in need of discharge assistance, or a situation involving abuse, neglect or financial exploitation). There are limited Program slots for the entire Commonwealth, and they are allocated among different geographic areas. The conditions that lead an individual to be placed under guardianship rarely improve over time, so individuals who receive a public guardianship slot generally hold that slot for the remainder of their life. A PGP Provider cannot accept public clients: (i) in excess of the slots allocated through its contract with DARS, (ii) outside of its contracted service area, or (iii) that will cause it to be out of compliance with the Program’s staffing requirements. Therefore, a PGP Provider generally will not have an open slot when an emergency arises and usually has a waiting list of individuals in great need of public guardianship services.

Fact: While compassion is an essential qualification Guardian Representatives, effective Guardian Representatives must have extensive knowledge of the laws, regulations, and systems affecting their
clients, including, for example:
• Benefits available through the Social Security Administration and the Veterans Administration;
• Medicare and Medicaid benefits;
• Medicaid Home and Community Based Services waivers that fund many of the services provided to older adults and individuals with intellectual and developmental disabilities;
• DBHDS’ Discharge Assistance Plan funding used to provide benefits to individuals leaving state hospitals;
• DSS’ Auxiliary Grant Program that funds housing for many individuals who receive
Supplemental Security Income (SSI), including individuals incapacitated by serious mental illness and traumatic brain injuries;
• CSB services; and
• Regulations governing long-term care facilities. Guardian Representatives also must have an understanding of the medical conditions and psychiatric disorders that affect their clients so that they can advocate for services and provide appropriate consents. Guardian Representatives must understand Program requirements and be able to grapple with the many ethical questions that arise as they respond to their clients’ needs. They must have sufficient interpersonal skills to work effectively with their clients and the many third-party service providers, including doctors, attorneys, government employees, therapists, and residential providers. Finally, Guardian Representatives must have the intelligence, clarity, and conviction needed to advocate on behalf of their clients.