In the 2004 opinion of the Va.
Court of Appeals, Com. v. Correll, Record No.
3387-02-3, the Court held that the relationship of guardian, and
the undertaking of care as primary custodian, was sufficient to trigger
criminal liability for the death of the guardian's severely malnourished
ward (Ms. Paxton, the guardian's mother) under Sec. 18.2-369.
The Court found that "[t]he evidence in
this record, when considered in its totality, demonstrates that Correll
was clearly capable of comprehending the seriousness of Paxton’s
condition, as well as her need for constant and immediate care. In fact, Correll
had cared for Paxton for years prior to her death, and had specifically
cared for Paxton in relation to her weight problem and the various
bedsores that she had developed over the years. Thus, we simply cannot
hold that the trial court’s finding of
willful and knowing neglect was plainly wrong. Indeed, testimony given
during the trial established that Correll
acknowledged Paxton was not being properly cared for prior to her
admission to the hospital and that those ' problems' were what prompted
the investigation by Bedford County Social Services."
37.2-1020, Duties and powers of guardian, provides in
pertinent part that a "guardian stands in a fiduciary relationship to
the incapacitated person for whom he was appointed guardian and may be
held personally liable for a breach of any fiduciary duty to the
incapacitated person. A guardian shall not be liable for the acts of the
incapacitated person, unless the guardian is personally negligent."
The Court's order establishes the fiduciary
relationship, and defines its limits. The Correll
case emphatically underscores the importance of counsel for the guardian
(as opposed to counsel for the petitioner or the incapacitated person),
and that counsel representing the
proposed guardian should insist that the
specifically detail the duties and liabilities of the guardian, especially
when the guardian contracts with third parties (such as congregate
facilities licensed by the Commonwealth) for care of the ward.