Aging or a mental disability may require you to make decisions on behalf of an adult you love. Without a valid durable power of attorney in place, the ability to make decisions on behalf of your loved one may be limited. Banks, doctors, and government representatives will demand proof of a court order granting you authority over the adult's person or property. This post provides a brief explanation of how to obtain such authority.
What is guardianship?
Guardianship grants a person, the guardian, the power to oversee another adult's personal affairs. A guardian is appointed by a circuit court to oversee the personal affairs of an incapacitated adult, including making decisions regarding the adult's health, safety, education, and therapeutic treatment. The guardian, however, does not have authority over the adult's financial affairs. It is the conservator who manages the estate and financial affairs of the incapacitated person. Any person can petition a circuit court to appoint a guardian and/or conservator of an adult.
Who needs a guardian?
A guardian or conservator is appointed to care for an incapacitated person. The Virginia code defines an incapacitated person as an adult who has been found by a court of being incapable of evaluating information effectively or responding to people, events, or environments to such an extent that they cannot meet the essential requirements for their own health, care or safety, or manage property or financial affairs. The court's determination is based on clear and convincing evidence and usually supported by the opinions of doctors, psychologists and psychiatrists. Poor judgment alone cannot be the basis for a determination of mental incapacity.
Who can be appointed as a guardian or conservator?
Any appropriate person willing to serve can be appointed guardian. Because the guardian will exercise significant power over the adult, the determination on who should serve as guardian should be based on the proposed guardian's relationship with the adult, geographic proximity to the adult, emotional stability, good physical health, the ability to understand the requirements of guardianship and a willingness to serve as guardian. To be appointed conservator, the proposed conservator must have no felonies on their record and be able to post bond, which is based on the value of the incapacitated adult's estate.
What is the process for being appointed guardian or conservator?
The process to appoint a guardian or conservator begins by filing a petition for guardianship and/or conservatorship. The petition must provide, among other requirements, detailed information about the incapacitated adult, the nature and extent of the adult's alleged incapacity, the type of care the adult currently receives. The petition must be supported by a detailed evaluation report of the adult's incapacity and include the names and addresses of the adult's immediate relatives; all persons listed must be notified of the proceedings. The court will then appoint a guardian ad litem (GAL) for the incapacitated adult. The GAL serves dual roles as an advocate for the incapacitated adult and the court's main source of information about the case. As in any civil law proceeding, the incapacitated adult is entitled to a jury trial, may retain their own counsel, compel the attendance of witnesses, present evidence on their own behalf, and confront and cross-examine witnesses. Unless the incapacitated adult or an interested person challenge the petition, the court will set a hearing within 120 days of the filing of the petition to enter the order to appoint a guardian/conservator for the incapacitated adult.
Where should the petition be filed?
The petition must be filed in the circuit court for the county where the adult resides or is located, or in which they resided immediately before entering a nursing facility. Virginia has jurisdiction to appoint a guardian if the adult resides in Virginia and under specific circumstances to appoint a guardian for a non-resident adult. Consult with an attorney before deciding where to file the petition, as jurisdictional issues could delay the appointment of a guardian.
Will I need a lawyer?
The process to be appointed guardian/conservator is adversarial in nature. As the petitioner, you are asking the court to strip away the adult's freedom to make their own decisions regarding their person and property. Because the laws in Virginia have been designed to preserve a person's freedom to care for themself, the petitioner must provide clear and convincing evidence of the adult's incapacity. In some cases, filing a petition may create or exacerbate conflicts among family members. An experienced attorney can help you in identifying alternatives to guardianship and conservatorship, gather the required documentation to support your petition, and assist you in effectively navigating the guardianship process.
This post is for informational purposes only and should not be considered legal advice. There is no attorney-client relationship until retainer agreement signed by client and lawyer.
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