If someone you love becomes mentally incapacitated and is incapable of making responsible decisions, the Circuit Court in the city or county where your loved one resides will appoint a substitute decision-maker for your loved one, called a "guardian" with respect to his or her health care, and a "conservator," with respect to his or her finances. Guardianship and Conservatorship is a legal relationship between a competent adult (the "guardian" or “conservator”) and a person who because of incapacity is no longer able to take care of his or her own affairs (the "ward").
Being appointed guardian or conservator of a loved one is a serious responsibility. As guardian or conservator, you are in charge of your loved one's well-being and finances and you have a legal obligation to act in his or her best interest.
If someone you love has experienced such a significant decline that he or she is no longer capable of managing his or her own affairs, then the first step to obtain these powers in Virginia is to file a petition with the Circuit Court in your loved one's locality. While anyone can file such a petition seeking to help a loved one or a friend, it is important to seek competent legal advice from a seasoned elder law attorney before proceeding.
The person who is subject to a guardianship or conservatorship action (the “respondent”) has constitutional rights that must be protected and preserved. In Virginia, this means that the respondent has the right to notice regarding the date, time, and purpose of the hearing scheduled. The respondent also has a right to a jury trial, to attend the hearing, to present evidence, to compel and cross-examine witnesses and medical reports, and to be represented by counsel. These rights must be carefully explained to the respondent before proceeding. The role of explaining these rights to the respondent is vested in an independent third party called a Guardian ad Litem (a “GAL”). GALs in Virginia are attorneys in private practice who volunteer to serve in this role. They are appointed by the Court to look into the best interests of the respondent in every guardianship and conservatorship proceeding that is filed and to report back to the Court in a detailed report regarding the same. The GAL's recommendation about the matter is not regarded as the final decision, but it is weighed and considered by the decision-maker in the proceeding, which is typically the Circuit Court Judge, in making the ultimate determination in each case.
In order to write his or her report, the GAL is required by statute to personally visit with the respondent and investigate the medical evidence of incapacity that has been presented in the matter. The GAL also routinely speaks to the respondent's relatives, and other parties that might have information regarding whether the petition should be granted.
In order to protect the respondent's rights, the law requires that the petitioner also notify at least three relatives of the respondent to the extent possible. This way, if any of those relatives have an objection to the proceeding, or additional useful information regarding the matter, the Court has an opportunity to hear it.
In Virginia, guardianship and conservatorship is a measure of last resort. Accordingly, as part of the process, the party seeking guardianship or conservatorship on behalf of a loved one must show that there are no less restrictive alternatives available. A better alternative that is less restrictive would be a validly executed Advance Medical Directive naming a Health Care Agent and a Durable Power of Attorney naming a Financial Agent to act for the loved one in the event of incapacity. Therefore, one of the most protective measures against a guardianship or conservatorship is proper estate planning.
If you have been appointed as guardian or conservator for a loved one, the following are things you need to know:
- Read the court order. The court has appointed you and given you certain powers and duties. You can be authorized to make legal, financial, and health care decisions for your ward. Depending on the terms of the guardianship/conservatorship, you may or may not have to seek court approval for various decisions. It is always a good idea to consult with a seasoned elder law attorney in your jurisdiction for assistance with understanding what you are allowed to do.
- Fiduciary duty. You have what's called a "fiduciary duty” to your ward, which is an extremely high standard. You are legally required to act in the best interest of your ward at all times and manage your ward's money and property carefully. With that in mind, it is imperative that you keep your finances separate from your ward's finances. In addition, you should never use the ward's money to give (or lend) money to someone else or for someone else's benefit (or your own benefit) without approval of the court. Finally, as part of your fiduciary duty you must maintain good records of everything you receive or spend. Keep all your receipts and a detailed list of what the ward's money was spent on.
- File reports on time. The court order should specify what reports you are required to file. In Virginia, conservatorship accounts are filed with the Commissioner of Accounts and annual Guardianship reports are filed with the Department of Social Services. The first report is usually an inventory of the ward's property. You then may have to file yearly accountings with the court detailing what you spent and received on behalf of the ward. Finally, after the ward dies or the guardianship ends, you will need to file a final accounting.
- Consult the ward. As much as possible you should include the ward in your decision-making. You should strive to ensure your ward's right to autonomy and self-determination is preserved to the greatest extent possible. Always communicate what you are doing and try to determine what your ward would like done.
- Don't limit social interaction. Guardians should not limit a ward's interaction with family and friends unless it would cause the ward substantial harm. In Virginia, guardians must allow their wards to communicate with their loved ones. Social interaction is usually beneficial to an individual's well-being and sense of self-worth. If the ward has to move, try to keep the ward near loved ones.
For a detailed guide from the Consumer Financial Protection Bureau on being a guardian, click here.
For more information about guardianship and conservatorship, click here.