Every adult is assumed to be capable of making his or her own decisions unless a court determines otherwise. If an adult becomes incapable of making responsible decisions, the court will appoint a substitute decision-maker, usually called a "guardian," but called a "conservator" or another term in some states.

In the state of Virginia, an adult guardianship or conservatorship is created when a Virginia circuit court determines that a person is unable to manage his or her own personal or financial affairs and appoints a guardian and/or conservator for that person.

A guardian is the person appointed to handle the affairs of the incapacitated person. A conservator handles the financial affairs of the incapacitated person. In the state of Virginia, the guardian and conservator may be the same person.

Guardianship is a legal relationship between a competent adult (the "guardian") and a person who because of incapacity is no longer able to take care of his or her own affairs (the "ward"). The guardian can be authorized to make legal, financial, and health care decisions for the ward. Depending on the terms of the guardianship and state practices, the guardian may or may not have to seek court approval for various decisions. In many states, a person appointed only to handle finances is called a "conservator."

Some incapacitated individuals can make responsible decisions in some areas of their lives but not others. In such cases, the court may give the guardian decision-making power over only those areas in which the incapacitated person is unable to make responsible decisions (a so-called "limited guardianship"). In other words, the guardian may exercise only those rights that have been removed from the ward and delegated to the guardian.

Incapacity

In Virginia, a person is judged to be in need of guardianship when he or she shows a lack of capacity to make responsible decisions, and no less restrictive alternatives are available for the management of the person's financial affairs or healthcare. A person cannot be declared incompetent simply because he or she makes irresponsible or foolish decisions, but only if the person is shown to lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because he spends money in ways that seem odd to someone else. Also, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent.

Process

In Virginia, anyone interested in the well-being of another can request a guardianship or conservatorship. An attorney is usually retained to file a petition for a hearing in the Circuit Court where the individual in need of assistance resides. The person in need of assistance is called the Respondent in the proceeding. Virginia has many protections in place for the respondent, including the requirement that the respondent is personally served with notice of the proceeding. The Petitioner must also notify at least three relatives of the respondent about the hearing. The respondent has the right to be present at the hearing, and if requested, the right to be represented by counsel, to present evidence, and to request a jury trial. If the allegedly incapacitated person cannot afford a lawyer, the court will appoint one for him or her.

Per Virginia law, any person may file a petition alleging that there is an incapacitated Virginia resident who needs to have a guardian or conservator appointed to manage some or all of his affairs. The petition must be filed in the Circuit Court for the city or county in which the respondent lives or where he lived immediately prior to moving to a nursing home, assisted living facility, or other institution.

After the petition is filed, a hearing will be scheduled for the court to hear evidence as to why a guardianship and/or conservatorship is necessary.

At the hearing, the court attempts to determine if the respondent is incapacitated and, if so, to what extent he or she requires assistance. If the court determines that the proposed ward is indeed incapacitated, the court then decides if the person seeking the role of guardian or conservator will be a responsible party.

A guardian can be any competent adult -- the ward's spouse, another family member, a friend, a neighbor, or a professional guardian (an unrelated person who has received special training). A competent individual may nominate a proposed guardian through a durable power of attorney in case she ever needs a guardian.

The guardian need not be a person at all -- it can be a non-profit agency or a public or private corporation. If a person is found to be incapacitated and a suitable guardian cannot be found, the court can appoint a public guardian, a publicly financed agency that serves this purpose, although due to demand the availability of these services is limited. In naming someone to serve as a guardian, courts give first consideration to those who play a significant role in the ward's life -- people who are both aware of and sensitive to the ward's needs and preferences. If two individuals wish to share guardianship duties, courts can name co-guardians.

Reporting Requirements

Courts often give guardians broad authority to manage the ward's affairs. In addition to lacking the power to decide how money is spent or managed, where to live, and what medical care he or she should receive, wards also may not have the right to vote, marry or divorce, or carry a driver's license. Guardians are expected to act in the best interests of the ward, but given the guardian's often broad authority, there is the potential for abuse. For this reason, courts hold guardians accountable for their actions to ensure that they don't take advantage of or neglect the ward. For this reason, Virginia law requires guardians to file annual reports regarding care of the ward with the ward's local department of social services. 

The conservator inventories the ward's property invests the ward's funds so that they can be used for the ward's support, and files regular, detailed, reports with the court. A conservator also must obtain court approval for certain financial transactions. Conservators must file an annual account of how they have handled the ward's finances. Conservators must offer proof that they made adequate residential arrangements for the ward, that they provided sufficient health care and treatment services, and that they made available educational and training programs, as needed. Conservators who cannot prove that they have adequately cared for the ward may be removed and replaced by another conservator.

Alternatives to Guardianship or Conservatorship

Because guardianship and conservatorship involves a profound loss of freedom and dignity, state laws require that they are imposed only when less restrictive alternatives have been tried and proven to be ineffective. Less restrictive alternatives that should be considered before pursuing guardianship or conservatorship include:

• Power of Attorney. A power of attorney is the grant of legal rights and powers by a person (the principal) to another (the agent or attorney-in-fact). The attorney-in-fact, in effect, stands in the shoes of the principal and acts for him or her on financial, business, or other matters. In most cases, even when the power of attorney is immediately effective, the principal does not intend for it to be used unless and until he or she becomes incapacitated. 
• Representative or Protective Payee. This is a person appointed to manage Social Security, Veterans' Administration, Railroad Retirement, welfare, or other state or federal benefits or entitlement program payments on behalf of an individual.
• Revocable trust. A revocable or "living" trust can be set up to hold an older person's assets, with a relative, friend, or financial institution serving as trustee. Alternatively, the older person can be a co-trustee of the trust with another individual who will take over the duties of trustee should the older person become incapacitated.

Contact us to discuss ways to protect against a guardianship or conservatorship.