Guardianships and conservatorships can be very complex in Virginia. We know that dealing with these kinds of issues can be emotionally draining, and having to conquer the legal matters as well quickly becomes overwhelming. As a loved one’s health deteriorates, the need for legal safeguards is even more substantial. Any delays or errors can devastate their well-being and potentially even their financial security.
The procedural issues are hard enough to manage, but they can also open the door to exploitation and mistreatment of the person you are trying to protect. Navigating Virginia’s laws surrounding these matters is tough without help. Fortunately, a Virginia trusts and estates lawyer at Melone Hatley will gladly help with your case. With our experience dealing with these cases’ legal and emotional facets, you can focus on achieving peace of mind for you and your loved one while we handle the legal complexities. Contact our family lawyers in Virginia or utilize our site form for easy online scheduling.
Difference Between a Guardian and a Conservator
In the Commonwealth of Virginia, a court may appoint a guardian to care for someone considered incapacitated.
A judge will first decide if a person is incapacitated, and if no documentation is in place to name a family member or other person as a guardian, the judge will then appoint a guardian.
This guardian will oversee the other person’s affairs, while a conservator is responsible for the person’s financial affairs. The court may impose limitations on guardianship depending on the individual circumstances, but guardianship is typically reserved as a last option for care.
A guardian will be appointed if a person has a physical or mental problem that prevents them from taking care of basic needs and if they have no family member or other person available to care for them.
When a petition is filed for guardianship and conservatorship, the court will appoint a guardian ad litem to investigate the respondent’s condition and report the same 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 may hire their attorney to represent their interests in the proceedings.
Guardianship Petition
After the guardian ad litem’s investigation is complete, a hearing will be held on the petition. The respondent can request a jury trial, present his own evidence, and have the right to confront and cross-examine witnesses. Following the standards set in Virginia Code 64.2-2007, the court will consider:
(i) the limitations of the respondent;
(ii) the development of the respondent’s maximum self-reliance and independence;
(iii) the availability of less restrictive alternatives, including advance directives and durable powers of attorney;
(iv) the extent to which it is necessary to protect the respondent from neglect, exploitation, or abuse;
(v) the actions needed to be taken by the guardian or conservator; (vi) the suitability of the proposed guardian or conservator; and (vii) the best interests of the respondent.
After the hearing, the court may order the appointment of a guardian and conservator while defending the respondent’s wishes. The guardian and conservator must file yearly reports concerning the ward’s physical condition and financial status.
Appointing a guardian and conservator essentially removes the ward’s rights to make decisions for himself, so it should only be used as a last resort when other options are unavailable. If you have a loved one who is an incapacitated adult, you should consult an attorney to determine whether guardianship and conservatorship proceedings are an option.
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Responsibilities of the Guardian
The appointed guardian will make decisions about the person’s livelihood, including responsibilities related to health, food, and residence.
Once appointed by a judge, a conservator must take inventory of the person’s property and file the appropriate documents. The conservator will then manage the person’s property while keeping their finances separate. The conservator is, however, allowed to make investments and financial decisions on behalf of the incapacitated person.
Guardianship and conservatorship involve complicated, time-consuming processes that often are left to the court’s discretion. However, with careful planning and documentation prepared in advance, these court processes can be avoided or shortened. While working with our Virginia guardianship lawyers at Melone Hatley, P.C., we can assist you in planning for the unexpected when you can still make your own decisions.
Responsibilities of a Conservator
As mentioned, a conservator has several essential duties to fulfill, but arguably, the most important is acting as a fiduciary for the person for whom they were appointed. That means a conservator must act in the person’s best interests while managing the funds for which they are responsible. This also includes keeping their funds separate from the person for whom they are making decisions.
When appointed as a conservator, it is their responsibility to manage the person’s estate in such a way that maximizes their quality of life rather than that of the conservator. The person’s funds can only be used in a way that benefits them. A Virginia guardianship attorney can help you determine whether any proposed action with their funds is beneficial. Remember to consider the following when making any financial decisions on the person’s behalf:
- Their wishes and values
- The overall amount of funds
- Their accustomed standard of living
- The length of the conservatorship in your best estimate
- Other resources available
- The recommendations of a guardian
When May a Guardianship or Conservatorship Be Necessary?
A guardianship or conservatorship is typically only necessary when a person becomes too old or disabled to have the mental capacity to manage their estate. While a conservator is there to handle the incapacitated person’s financial affairs, a legal guardian takes the personal and general affairs of a person with incapacity to do it themselves, such as medical decisions, medical treatment, and living arrangements
Who May File for Guardianship in Virginia?
Technically speaking, anyone can file for guardianship in Virginia, but it will be hard to make your case if you do not know the incapacitated person. Typically, guardianship is taken on by a friend or family member, but the ultimate decision lies with a judge. After evidence of impairment is presented and a hearing is held, a judge will issue a court order to appoint a guardian.
How Long Does a Guardian or Conservatorship Last in Virginia?
Usually, an adult guardianship or a conservatorship in Virginia lasts until the service is no longer required. While that can be a point where the person is no longer incapacitated, it often ends with the incapacitated person’s death. In most cases, this is all settled beforehand. If an incapacitated person is expected to get better, the Virginia guardianship will be assigned on a limited basis.
What if the Guardian Wants to Resign?
If any guardian wants to resign, they must find a substitute who can act as a guardian. This motion must be filed with the same Virginia Circuit Court that appointed the original guardian.
Why Must You Have a Conservator and Not a Power of Attorney?
Power of attorney offers much authority, but it is only a feasible solution if the person is still mentally capable. If someone is already incapacitated, a conservator must be appointed by a judge instead. Power of attorney can only be granted by the person the appointee would have power of attorney over. This obviously cannot be done by an incapacitated individual.
Why Must You Have a Conservator and Not a Power of Attorney?
Melone Hatley can help if you are seeking guardianship or conservatorship. Our experienced elder law and family law attorneys will work with you every step of the way to help protect the health care needs and estate of your loved one throughout Virginia, including Hampton Roads, Richmond, and Northern Virginia.
Our legal team is also happy to offer free legal advice videos and eBooks for you to learn more about the subject.
