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.

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15 responses to “The Issue of Guardianship and the Contribution of a Newspaper

  1. I’m not sure I care that “legal authorities seem to be divided on the conflict of interest question”.

    1. I didn’t take that away from the article, but I may have missed it so I have to go back and look;

    2. Any time a hospital or insurer is paying for the Guardian or the Guardian ad litem in a case (and there are usually ongoing relationships between the two in these matters), I have concluded that it’s a conflict of interest. It may be that the choice of attorneys available to hospitals and insurance companies for this task is limited, so that the same attorney(s) always get appointed. But when somebody with a clear interest on one side is paying for the other side to be represented, any reasonable person would conclude there is a conflict of interest. Contrast the situation where one family member pays for another family member’s attorney: in those situations any potential conflict is usually solved by cutting off communications between the payor and the attorney. Plus the situations are also usually one-off, e.g a criminal matter. In the cases mentioned in RTD, the same attorney is being hired by the same “family member” (the hospital) in most of the cases. Who has the most potential to get the short end? The person represented ? Or the repeat party paying the bill? Long and short, it stinks.

    Contrary viewpoint: a lawyer friend of mine says any lawyer who cannot cannot do his job to represent the individual while ignoring who is paying the bill is not much of a lawyer. There is some plausibility to that argument, but to me it doesn’t win the day.

    I commend this RTD article to everyone, no matter your political leanings. It raised my opinion of RTD substantially. WSJ used to run articles like this. I’m hoping RTD will suggest some solutions with the second installment.

    • In its defense, ThompsonMcMullan soliticted the opinion of a former president of the Virginia State Bar and former chairman of the Virginia Supreme Court Disciplinary Board. A UVa law professor said that, at the very least, ThompsonMcMullan’s arrangement “could bring into question the attorney’s ability to independently look out for the interests of the person under guardianship.”

      I do not want to get myself or BR into trouble by publicly questioning an attorney’s or law firm’s ethics.

  2. Kudos to the RTD for digging into this story. For sure, if the local newspaper didn’t do it, no one else would. I have major qualms about the newspaper’s editorial slant on many issues, but the only thing worse than having a liberal newspaper is having no newspaper at all. I hope the RTD can do more stories like this.

    Why am I not surprised to see that VCU Hospital is involved up to its eyeballs in this? Oh, maybe it’s the fact that, even as a nonprofit, it has one of the highest profit margins in the state. From what I have observed, VCU puts its institutional interests over those of everyone else.

  3. My experience is limited to one case (in Arlington County) where my wife was appointed as guardian for a long time 65 y/o friend. The proceeding was initiated by the hospital where her friend was a patient because he was impaired by a stroke and was not able to consent to his discharge.

    The guardian ad litem appointed by the court seemed to take his work seriously. He interviewed the friend/patient and also his brother. The brother did not object to the proceeding, but refused to accept appointment as guardian. My wife took on the job reluctantly (and without compensation) because the alternative was the appointment of the “next in line” from the list of those Arlington attorneys who were willing to accept appointment and whose fees would be a drain on her friend’s assets.

    Being appointed guardian did not give my wife control over her friend’s finances. That required a separate appointment as conservator In that capacity she had to post a fidelity bond and renew it annually, file an inventory and file an annual report of receipts and disbursements. A separate court approval proceeding was required prior to significant asset transactions, i.e., sale of the friend’s house.

    Overall, the court supervision was relatively slight for my wife’s work as guardian, but quite extensive for her work as conservator. As guardian she had to file an annual narrative report of her activities and the friend’s condition, but no interview was required with the supervising agency during the 3+ years before her friend died. If she had not made timely filing of the narrative report, perhaps there would have been.

    As conservator she had to submit a detailed (balanced to the penny) annual accounting that was reviewed by the Commissioner of Accounts. This accounting required supporting documentation for each item of receipt and disbursements (every cancelled check). I remember this well as (without compensation) I prepared each annual accounting for her and dealt with questions from the auditing clerk, while she visited her friend twice a week.

    My overall impression of the process was favorable. I thought that every one we dealt with was trying to do the right thing, but do it quickly because the pay was not high.

    • You and your wife are to be commended for taking on this responsibility. It is unfortunate that everyone who needs this service does not have such friends or family members who are able and willing to take it on.

  4. Well, I’m confused. IF we are talking about people who are unable to care for their own affairs and no family members are available, then what exactly is the hospitals role – more or less than any other creditor?

  5. Excellent and well-written post with helpful and informative comments. Articles like this are why I regularly read BR.

  6. re: ” 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.”

    That does not sound right. That makes it sound like the family is denied the ability to be guardian …. surely that’s not true.

    • It can get complicated. In many instances, there may be a patient who no longer needs acute medical care in a hospital, but does need some ongoing medical care, as well as help with regular functions of living. That person may not have any family or friends able and willing to take care of him and, in addition, may not be able to make important decisions (medical, financial, etc.). In such a case, the hospital can ask the court to appoint a guardian who can find a suitable place, e.g. nursing home, assisted living, etc. for that person to be transferred to. The guardian also can oversee the person’s care and take care of financial matters, e.g. paying bills. That is the best scenario.

      In the case described in the RTD article, the patient had been admitted to VCU Health several times in the past year. The wife had health problems of her own. Both were elderly. However, the patient and his wife did not want him transferred to a nursing home, but released to go home. The wife refused to consent to a nursing home. VCU Health petitioned the court for the appointment of a guardian. The court determined that the wife was not able to appropriately care for her husband and, therefore, appointed a guardian. The guardian, at the request of VCU Health, transferred the patient to a nursing home. That nursing home has the lowest Medicare/Medicaid rating and had numerous health citations at its last inspection.

      One of the things I learned from the article is that acute hospitals are reimbursed by Medicaid/Medicare not on the individual care provided a patient, but instead on the basis of formula that uses a number of factors, including diagnosis, treatment, and patient age. If that formula determines that the patient should need to stay in the hospital three days, the hospital gets reimbursed for three days, whether the patient stays two days or ten days. Therefore, the hospital has a strong financial incentive to get patients out as fast as possible. As a result, according to a report by the Virginia Department of Aging and Rehabilitative Services, hospitals have a strong financial incentive to initiate guardianship proceedings. VCU Health denies that losing money is never a consideration in its decision to initiate guardianship proceedings.

  7. It was a very good article – so thanks. I do not have a paid subscription to RTD – already pay FLS, WaPo, NYT and WSJ – enough!

    And I do understand the predicament the hospital is in if Medicare will no longer reimburse them for someone that needs to be somewhere else.

    However, it bothers me that the hospital has a financial interest in the situation AND other interests that may not be in the best interest of the person involved. That troubles me a bit.

    The state has services for a wide range of needs from children to mental ill to representation in court so this does not seem to be that far afield in terms of similar level services – why doesn’t the state have a program that provides an advocate guardian for the person involved – and it may well be a paid position from the assets of the person involved at some point?

    I just think the direct connection between the hospital and guardianship has some ethical issues but I would know almost none
    of this without your excellent article. thank you.

    • As I pointed out in my post, there is a state-funded public guardianship program and it is considered one of the best-designed in the country. However, it is seriously underfunded and, therefore, has a six-month waiting list. Hospitals do not want to wait that long.

      • Okay – but having a “program” that is not adequately funded, is not really a “program” in my view – the other half of the equation needs to be done – a method for adequately funding – and it could well includes fees on estates when possible.

  8. One of my favorite charities …

    I’ve always thought of CASA in terms of children but I suppose CASA or some other organization could provide support in any guardianship situation of they wanted to do so.

  9. We do this at this time of year:

    Holiday Hope Program
    Each year, the Spotsylvania Department of Social Services (DSS) provides Thanksgiving and/or Christmas assistance to our clients through the Holiday Hope Program. Holiday Hope matches businesses, church and community groups, and individuals with needy families. Qualifying families submit an application (DOC) to DSS and provide a list of the names, ages, and clothing sizes of children in the household.

    but the same folks also do this:

    Adult Protective Services (APS)
    APS investigates reports of abuse, neglect, and exploitation of adults 60 years of age or older and incapacitated adults age 18 or older. If protective services are needed and accepted by the individual, local Adult Protective Services social workers may arrange for a wide variety of health, housing, social and legal services to stop the mistreatment or prevent further mistreatment. Services offered may include home-based care, transportation, adult day services, adult foster care, nutrition services and legal intervention in order to protect the adult. Services may also be arranged for individuals in emergency situations who lack the capacity to consent to services.

    Note the last sentence.

    I’d prefer that DSS do this rather than the hospital who treated the individual.

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