We strongly encourage our clients who have minors or dependents to include guardianship as part of their estate plan. While we don’t handle cases specifically related to guardianship and conservatorship for incapacitated adults, we do frequently get questions on the subject which we answer here.
Guardians and conservators are appointed to represent and protect the interests of incapacitated persons. By law, an incapacitated person is unable to make decisions on their own. The incapacitated person is referred to by the term “ward.” Statutory authority for these appointments can be found in Virginia Code 64.2-Chapter 20.
What are the responsibilities of a guardian and conservator?
A guardian is appointed to make decisions with regard to the ward’s healthcare and living conditions, but does not necessarily have authority to spend money or make decisions regarding the ward’s finances. A separate appointment as conservator is required to obtain authority over an incapacitated person’s financial affairs. A guardian and conservator may be, but are not necessarily the same person.
Without a power of attorney in place naming someone to act on your behalf, the only way to gain authority over an incapacitated person is through guardianship and conservatorship proceedings in Circuit Court. A judge will decide first, whether the person is incapacitated, and second, who should act as guardian and/or conservator.
A guardian’s authority can be broad or it can be limited in nature and duration. Authority may be limited depending on the ability of the incapacitated person to take care of his or her own personal, health, and safety needs. The extent or limitations of authority will be stated in the court’s order.
Similarly, the authority of a conservator may be broad or limited in nature. The court may grant authority over all of the ward’s financial affairs or may only be permitted to exercise authority over one account for limited purposes.
Guardian ad litem
When a petition is filed for guardianship and conservatorship, the court will appoint a guardian ad litem to investigate the respondent’s condition and send a report to the court. The guardian ad litem is responsible for providing a copy of the petitions to the incapacitated person and advising him of his rights during the proceedings. The incapacitated person has the right to hire his/her own attorney to represent their interests in the proceedings.
After the guardian ad litem’s investigation is complete, a hearing will be held on the petition. The respondent can request a jury trial, can present his or her own evidence, and has the right to confront and cross-examine witnesses.
Following the standards set in Virginia Code 64.2-2007, the court will consider:
- the limitations of the respondent
- the development of the respondent’s maximum self-reliance and independence
- the availability of less restrictive alternatives, including advance directives and durable powers of attorney
- the extent to which it is necessary to protect the respondent from neglect, exploitation, or abuse
- the actions needed to be taken by the guardian or conservator
- the suitability of the proposed guardian or conservator
- the best interests of the respondent
After the hearing, the court may order the appointment of a guardian and conservator while giving deference to the known wishes of the respondent. The guardian and conservator must file reports each year concerning the ward’s physical condition and financial status.
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Appointment of a guardian and conservator essentially removes the ward’s rights to make decisions for him or herself, so it should only be used as a last resort when other options are not available. If you have a loved one who is incapacitated, you should consult with an attorney, experienced in the area of guardianship and conservatorship to determine whether these proceedings are the appropriate option.