Right to guardian ad litem

The Adult Protective Services code is found at Va. Code Ann. §§ 63.2-1603 through 63.2-1610.  Section 63.2-1603 defines an “Adult” as “any person 60 years of age or older, or any person 18 years of age or older who is incapacitated…”  Protective services are ordinarily provided on a voluntary basis, as section 63.2-1610 states, “The local department shall provide or arrange for protective services if the adult requests or affirmatively consents to receive these services. If the adult withdraws or refuses consent, the services shall not be provided.”

But “[i]f an adult lacks the capacity to consent to receive adult protective services, these services may be ordered by a court on an involuntary basis through an emergency order pursuant to § 63.2-1609 or by a guardian or conservator appointed pursuant to Chapter 20 (§ 64.2-2000 et seq.) of Title 64.2.” Va. Code Ann. § 63.2-1608(A).   In regard to the right to representation at hearings on the petition for an emergency order for adult protective services, the statute provides:

The adult who is the subject of the petition shall have the right to be present and be represented by counsel at the hearing. If it is determined that the adult is indigent, or, in the determination of the judge, lacks capacity to waive the right to counsel, the court shall locate and appoint a guardian ad litem.

Va. Code Ann. § 63.2-1609(E).  Language such as “the right to be represented by counsel” does not ordinarily create the right to appointed counsel.
Accordingly, we read this to mean that indigent individuals who lack capacity are entitled to an appointed GAL. However, it is not clear whether the GAL must be an attorney. Accordingly, we have classified this development as “does not affect.”

Services ordered under this section may be provided for a 15-day period, and the order may be renewed once for a five-day period if a showing is made that continuation is necessary to remove the emergency. Id. at (B)(3). Furthermore, in the order issued “the court shall appoint the petitioner or another interested person, as temporary guardian of the adult” and “[w]hen applicable, the court shall appoint … [a] temporary conservator of the adult…” Id. at (B)(4)-(5). If services are still needed after the renewal order expires, “the temporary guardian, temporary conservator, or local department shall immediately petition the court to appoint a guardian and, if applicable, a conservator pursuant to Chapter 20 (§ 64.2-2000 et seq.) of Title 64.2.” § 63.2-1609(E). To learn more about the status of the right to counsel in Virginia guardianship and conservatorship cases, please see Legislation, Guardianship/Conservatorship of Adults – Protected Person.