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A guardianship or conservatorship is a legal relationship established after a court determines that a person is incapacitated. After making such a finding, the court appoints an individual who will act as a decision maker to meet the needs and protect the rights of the incapacitated person.
The following material is intended to answer basic questions you may have about establishing a guardianship or conservatorship. Your attorney can assist you with more complicated questions. We look forward to helping you navigate the process when you are ready to proceed.
The terms guardian and conservator are legally distinct. Whereas a guardian is an individual appointed by the court to bear responsibility for the personal affairs of the incapacitated person, a conservator is appointed to manage the estate and financial affairs of the incapacitated person. While one person may serve as guardian and conservator, this need not always be the case.
Pursuant to Section 64.2-2000 of the Code of Virginia, “Incapacitated person” means an adult who has been found by a court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to
(i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or
(ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator.
A finding that the individual displays poor judgment alone shall not be considered sufficient evidence that the individual is an incapacitated person within the meaning of this definition.
All attempts to establish a guardianship or conservatorship in Virginia commence with the filing of a petition in the Circuit Court serving the jurisdiction wherein the proposed incapacitated person resides. The petition includes a report on the conditions and circumstances of the proposed incapacitated person, including medical diagnosis and an analysis of the person’s functional capabilities. A licensed physician or psychologist must make these assessments.
Following the filing of the petition, the proposed incapacitated person must be given proper notice that a guardianship petition has been filed. The court will also appoint an attorney to represent the interests and rights of the proposed incapacitated individual called a Guardian Ad Litem. The Guardian Ad Litem advises the proposed incapacitated person and prepares and presents an independent report to the court as to the need for and fitness of the proposed guardian or conservator.
After all procedural requirements have been met, a court hearing is held. If the court finds that the person is incapacitated, the court will appoint a guardian and/or conservator, as appropriate. The court order must specify and define the powers and authority of the guardian and/or conservator, and the court may limit such authority when the individual has some capability of attending to his or her own interest in some areas.
Typically, the individual filing the petition for guardianship or conservatorship is appointed as guardian or conservator. This person is usually a family member or friend. The guardian or conservator must be at least 18 years old, and capable of performing the duties involved. The guardian or conservator is not required to be a resident of Commonwealth of Virginia.
Serving as a guardian or conservator is a demanding position. The person appointed is responsible for carrying out the powers granted in the court order. In addition, Virginia law stipulates a number of mandatory reporting requirements. These reports include annual financial accounting, as well as an annual, detailed report on the living conditions of the incapacitated person.
The guardian or conservator is a fiduciary of the incapacitated person. They are obligated to protect the individual’s rights and welfare; health and medical needs; and property and financial position. A fiduciary must not act out of convenience or self-interest but always in the interest of the incapacitated person.
A guardianship or conservatorship is typically a matter of last resort for the person filing the petition. However, it should be understood that certain consequences come with the decision to proceed with an action for guardianship or conservatorship. The following are the possible disadvantages or consequences.
A guardianship and or conservatorship may be avoided if the incapacitated person has already executed a Durable Power of Attorney for both financial and health care decision making. To assure that it will be upheld if challenged, the Durable Power of Attorney must be executed before the person becomes incapacitated. Under this scheme the person gets to pick who he or she wants as a substitute decision maker instead of the court. In addition, drafting this document is relatively inexpensive and not time consuming to draft assuming the person’s estate is not of great complexity.
There are several ways in which a guardianship or conservatorship can terminate. These include:
The client will meet with the attorney to review the current status of the case, develop a plan of action, determine a budget, and formulate a timetable for resolution. The attorney will discuss the client’s specific goals, review any relevant caselaw or statutes related to the litigation and answer the clients questions about the process.
Being party to a lawsuit requires ongoing effort to organize your case through written documents that are submitted to the court and opposing parties. It also may require court appearances to argue pretrial motions. During this stage, we will prepare any pleadings to be submitted to the court, draft discovery requests, responses and objections, issue subpoenas, conduction depositions, and prepare and argue any pretrial motions. This stage typically occupies 70-80% of the total timeline for your case.
This stage includes review of all relevant evidence, preparation of any potential witnesses and the formulation of trial strategy. Our experienced staff will assist in the assembly of trial notebooks that include all documents you intend to present at trial. During this stage, settlement negotiations may take place in an effort to resolve your case without a trial if it is possible.
If your case cannot be resolved through negotiation, a trial will be required. Based upon the plan we develop with you, we will present the evidence and witnesses that we have prepared to present your case in the light most favorable to you. Trials can sometimes have unpredictable outcomes. However, when you hire the Reed Law Firm, you can be confident that the evidence, arguments, and testimony you want to have heard will be presented in a coherent, organized, and compelling way to provide you with the best possible opportunity to win your case.