2006 Code of Virginia § 37.2-1018 - Discovery of information and records regarding actions of certain agents and attorneys-in-fac...

37.2-1018. Discovery of information and records regarding actions ofcertain agents and attorneys-in-fact.

A. For purposes of this section:

"Member of the principal's family" means an adult who is a parent, brotheror sister, niece or nephew, child or other descendent, spouse of a child ofthe principal, and spouse or surviving spouse of the principal.

"Person interested in the welfare of a principal" means any member of theprincipal's family; a person who is a co-agent or co-attorney-in-fact, analternate agent or attorney-in-fact, or a successor agent or attorney-in-factdesignated under the power of attorney or other writing described in 11-9.1; and, if none of these persons is reasonably available and willing toact, the adult protective services unit of the local department of socialservices for the city or county where the principal resides or is located atthe time of the request.

"Principal believed to be unable to properly attend to his affairs" meansan individual believed in good faith by the petitioner to be a person who isimpaired by reason of mental illness, mental retardation, physical illness ordisability, substance abuse, or other causes to the extent of lackingsufficient understanding or capacity to make or communicate responsibledecisions.

B. After having first made a request to an agent or attorney-in-fact fordisclosure under 11-9.6, any person interested in the welfare of aprincipal believed to be unable to properly attend to his affairs may, forthe purpose of obtaining information pertinent to the need or propriety of(i) instituting a proceeding under this chapter or (ii) terminating,suspending, or limiting the authority of an attorney-in-fact or other agent,petition a circuit court for discovery from the attorney-in-fact or otheragent of information and records pertaining to actions taken within the pasttwo years from the date the request under 11-9.6 was made pursuant topowers or authority conferred by a power of attorney or other writingdescribed in 11-9.1.

C. The petition may be filed in the circuit court of the county or city inwhich the attorney-in-fact or agent resides or has his principal place ofemployment, or, if a nonresident, in any court in which a determination ofincompetency or incapacity of the principal is proper under this title, or,if a conservator or guardian has been appointed for the principal, in thecourt that made the appointment. The court, after reasonable notice to theattorney-in-fact or agent and to the principal, if no guardian or conservatorhas been appointed, may conduct a hearing on the petition. The court, uponthe hearing on the petition and upon consideration of the interest of theprincipal and his estate, may dismiss the petition or may enter such order ororders respecting discovery as it may deem appropriate, including an orderthat the attorney-in-fact or agent respond to all discovery methods that thepetitioner might employ in a civil action or suit subject to the Rules of theSupreme Court of Virginia. Upon the failure of the agent or attorney-in-factto make discovery, the court may make and enforce further orders respectingdiscovery that would be proper in a civil action subject to such Rules andmay award expenses, including reasonable attorney's fees, as thereinprovided. Furthermore, upon completion of discovery, the court, if satisfiedthat prior to filing the petition the petitioner had requested theinformation or records that are the subject of ordered discovery pursuant to 11-9.6, may, upon finding that the failure to comply with the request forinformation was unreasonable, order the attorney-in-fact or agent to pay thepetitioner's expenses in obtaining discovery, including reasonable attorney'sfees.

D. A determination to grant or deny in whole or in part discovery soughthereunder shall not be considered a finding regarding the competence,capacity, or impairment of the principal, nor shall the granting or denial ofdiscovery hereunder preclude the availability of other remedies involvingprotection of the person or estate of the principal or the rights and dutiesof the attorney-in-fact or other agent.

(1997, c. 921, 37.1-134.22; 2005, c. 716.)