Virginia HB 424: Guardianship; duties of guardian, visitation requirements.

Bill Text

2022SESSION
INTRODUCED
22102637D
1 HOUSEBILLNO.424
2 OfferedJanuary12,2022
3 PrefiledJanuary11,2022
4 A BILL to amend and reenact § 64.2-2019 of the Code of Virginia, relating to guardianship; duties of
5 guardian; visitation requirements.
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Patron––Herring
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8 ReferredtoCommitteeforCourtsofJustice
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10 Be it enacted by the General Assembly of Virginia:
11 1. That §64.2-2019 of the Code of Virginia is amended and reenacted as follows:
12 §64.2-2019. Duties and powers of guardian.
13 A. A guardian stands in a fiduciary relationship to the incapacitated person for whom he was
14 appointed guardian and may be held personally liable for a breach of any fiduciary duty to the
15 incapacitated person. A guardian shall not be liable for the acts of the incapacitated person unless the
16 guardian is personally negligent. A guardian shall not be required to expend personal funds on behalf of
17 the incapacitated person.
18 B. A guardian's duties and authority shall not extend to decisions addressed in a valid advance
19 directive or durable power of attorney previously executed by the incapacitated person. A guardian may
20 seek court authorization to revoke, suspend, or otherwise modify a durable power of attorney, as
21 provided by the Uniform Power of Attorney Act (§ 64.2-1600 et seq.). Notwithstanding the provisions of
22 the Health Care Decisions Act (§ 54.1-2981 et seq.) and in accordance with the procedures of
23 § 64.2-2012, a guardian may seek court authorization to modify the designation of an agent under an
24 advance directive, but the modification shall not in any way affect the incapacitated person's directives
25 concerning the provision or refusal of specific medical treatments or procedures.
26 C. A guardian shall maintain sufficient contact with the incapacitated person to know of his
27 capabilities, limitations, needs, and opportunities. The guardian shall visit the incapacitated person as
28 often as necessary and at least once every three months. During each visit, the guardian shall observe
29 and assess the following: (i) the safety and adequacy of the incapacitated person's living arrangements;
30 (ii) the incapacitated person's overall mental, physical, and social condition especially as compared to
31 previous visits; (iii) whether and how the incapacitated person's physical and mental health care needs
32 are being met, including whether the adult has been hospitalized and why; (iv) progress made by the
33 incapacitated person toward any expressed goals; (v) participation by the incapacitated person in social
34 activities and educational or vocational programs; and (vi) contact and involvement with relatives and
35 friends by the incapacitated person.
36 D. A guardian shall be required to seek prior court authorization to change the incapacitated person's
37 residence to another state, to terminate or consent to a termination of the person's parental rights, or to
38 initiate a change in the person's marital status.
39 E. A guardian shall, to the extent feasible, encourage the incapacitated person to participate in
40 decisions, to act on his own behalf, and to develop or regain the capacity to manage personal affairs. A
41 guardian, in making decisions, shall consider the expressed desires and personal values of the
42 incapacitated person to the extent known and shall otherwise act in the incapacitated person's best
43 interest and exercise reasonable care, diligence, and prudence. A guardian shall not unreasonably restrict
44 an incapacitated person's ability to communicate with, visit, or interact with other persons with whom
45 the incapacitated person has an established relationship.
46 F. A guardian shall have authority to make arrangements for the funeral and disposition of remains,
47 including cremation, interment, entombment, memorialization, inurnment, or scattering of the cremains,
48 or some combination thereof, if the guardian is not aware of any person that has been otherwise
49 designated to make such arrangements as set forth in § 54.1-2825. A guardian shall have authority to
50 make arrangements for the funeral and disposition of remains after the death of an incapacitated person
51 if, after the guardian has made a good faith effort to locate the next of kin of the incapacitated person to
52 determine if the next of kin wishes to make such arrangements, the next of kin does not wish to make
53 the arrangements or the next of kin cannot be located. Good faith effort shall include contacting the next
54 of kin identified in the petition for appointment of a guardian. The funeral service licensee, funeral
55 service establishment, registered crematory, cemetery, cemetery operator, or guardian shall be immune
56 from civil liability for any act, decision, or omission resulting from acceptance of any dead body for
57 burial, cremation, or other disposition when the provisions of this section are met, unless such acts,
58 decisions, or omissi