The Issue of Guardianship and the Contribution of a Newspaper

Ora Lomax with a picture of her husband, William, who was committed to a nursing home against her wishes. Photo credit: Richmond Times Dispatch

On Sunday, the Richmond Times-Dispatch ran a remarkable article. It was remarkable both in the amount of space the newspaper dedicated to it, 5½ whole pages, and its subject, guardianship, a subject about which little is known by the public, but that could affect anyone.

The publishing of this series of articles illustrates the continuing value of newspapers. The RTD invested a lot of resources into this story. It was a year-long investigation in which staff combed through the records of hundreds of guardianship cases originating in the Richmond circuit courts. They examined all the public documents related to those cases. They created a database with all the relevant data from those cases. They also looked at some guardianship cases filed in Henrico and Norfolk circuit courts to see how such cases were handled in different jurisdictions. They interviewed dozens of people and attended guardianship hearings. No other media for the general public could, or would, dedicate this amount of resources to a single topic.

I confess that I knew virtually nothing about guardianship and what I now know is a result of reading this story. The story is another damning one for the VCU Health System and its practices regarding patients who cannot afford their medical bills. There is too much to the story to get into a lot of detail for this blog, but I will list a few highlights:

  1. Under Virginia law, a hospital can petition the circuit court to appoint a guardian for one of its patients due to that patient’s inability to care for himself or make decisions. The hearing can take place without the patient being present or having a defense attorney to speak on his behalf. The court does appoint a guardian ad litem to represent the patient’s best interests.
  1. A guardian appointed by a court can place the patient in a nursing home upon the request of the hospital and has control of all medical and financial decisions concerning the patient, regardless of the patient’s or family’s wishes.
  1. The VCU Health System has had a contract since 2007 with a law firm, ThompsonMcMullan, to file its guardian cases in circuit court. Lawyers in that firm also are appointed guardians for the patients by the courts. In contrast, the Bon Secours Health System and Sentara Healthcare, both large hospital systems in Virginia, do not allow their attorneys hired to bring guardianship petitions in courts to also serve as the patients’ guardian, saying to do so would be a conflict of interest. The legal authorities seem to be divided on the conflict of interest question.
  1. The vast majority, more than 90 percent, of the guardianship cases of ThompsonMcMullan, the VCU Health System’s law firm, are handled by one attorney and two colleagues. The primary attorney has had as many as 120 people under his guardianship at a time. He cannot always visit the people under his care and “trusts the state departments of health and social services to ensure the licensed facilities where they are living are safe.”
  1. The same person has been appointed guardian ad litem by the courts in 90% of VCU Health guardianship cases since 2014. She was paid by VCU Health for her work on those cases.
  1. There is a state-funded public guardianship program. It limits guardians to a caseload of 20 people at a time, requires the guardian to visit each person in guardianship at least monthly to ensure they are getting proper care, and requires the guardian to encourage the person under guardianship to define the direction of his/her life as much as possible.  That program is significantly underfunded and has a six-month waiting period.
  1. In 87% of the cases reviewed by the RTD, the people appointed a guardian in health care provider-initiated guardianship proceedings were deemed by the court to “very poor” and could not afford an attorney, and many had complex mental health diagnoses.

The RTD uses the story of one couple to put a human face on this issue. It is a tragic story. As in any situation like this, the details can get messy and there are conflicting perspectives, but the newspaper tries to show both sides.

But there are many unasked questions. For example, the patient in the story was a Korean War veteran. Therefore, he would have been eligible for admission to the state-run Sitter Barfoot Veterans Care Center, located adjacent to the McGuire VA Hospital in south Richmond, rather than the sub-standard nursing home in Henrico County to which he was transferred. However, the state facility has a waiting list. Was VCU Health so anxious to get him out of its facility that it was not willing to wait for a bed to become available at Sitter Barfoot? One reason that the guardian ad litem gave for saying that the patient’s wife could not care for her husband was that she had fired three home-care aides. The wife contended that she had fired them because one had hit her husband, one had come to work intoxicated, and the third had lied about her criminal record. Those all seem to be valid reasons. Was any effort made to substantiate these claims?

Even with all the legal and factual complexities in mind, I, nevertheless, came away thinking that it is money, and not the patients’ best interests, that drives the process. And, regardless of his motivations, I agree with the opinion expressed by the ThompsonMcMullan attorney that his high caseload is a symptom of a system that fails vulnerable, poor people.

Next Sunday, the RTD will have a second installment of this three-part series, focusing on power of attorney.