Suppose an adult is incapable of managing their financial or personal affairs. In that case, the court may declare them legally incapacitated and grant a guardian or conservator the legal authority to handle their affairs.
What is the difference between guardianship and conservatorship? A guardian takes care of the incapacitated person’s affairs in general, while a conservator handles finances specifically. One person can act both as a guardian and as a conservator.
What is the legal process of assigning guardianship? What are a legal guardian’s duties? Are there alternatives to guardianship? Our estate planning and guardianship attorneys at PJI Law, PLC, have some answers for you.
Appointing a Guardian
Anyone can petition a circuit court in Virginia stating that a resident (called a respondent) is incapable of managing some or all of their affairs. The petition must go through the circuit court in the respondent’s county of residence.
Next, the court will schedule a hearing to determine whether the respondent needs a guardian or conservator and who should act as such. Usually, evidence in these hearings includes records pointing to mental incapacity or severe illness.
How Does a Circuit Court Decide That Guardianship Is Necessary?
To decide on guardianship or conservatorship, the court must ascertain that the respondent cannot evaluate information or react to people and outside events adequately, to the extent of being unable to:
- Take care of their own health, safety, and basic care, or
- Manage their financial affairs or property
In the first case, the court will appoint a guardian, and in the second, a conservator. However, guardianship and conservatorship often go hand in hand. A typical example is a family member handling the medical, personal, and financial affairs of an elderly relative who has dementia.
The Duties of a Guardian and Conservator
A guardian assumes responsibility for their ward’s personal affairs, such as making sure the ward has a suitable place to live, purchasing daily necessities, and paying household bills. They are also responsible for the ward’s medical treatment. The guardian should encourage the ward to take part in decisions as much as possible.
A guardian must file yearly reports with the Virginia Department of Social Services, giving an account of their ward’s living arrangements, health condition, and other relevant information.
A conservator must manage and preserve the income and assets of the ward and file annual reports with the Virginia Commissioner of Accounts , providing details on all funds received and expenses incurred on behalf of the ward.
Guardians and conservators must act in their wards’ best interests to the best of their ability. The law can hold a guardian or conservator liable if they neglect their duties or improperly manage the ward’s finances.
How Long Does a Guardianship Last?
Generally, guardianship lasts until the end of the ward’s life. However, if the ward’s medical condition changes, it is possible to terminate guardianship. If the original guardian can no longer perform their duties, the circuit court may also appoint a new one. Any modifications to a guardianship arrangement require a petition and hearing in a circuit court.
Alternatives to Guardianship or Conservatorship
Guardianship and conservatorship are always the last resort since they take away an adult person’s rights and freedoms.
One practical alternative to guardianship or conservatorship is a durable general power of attorney. However, a durable POA is a legal arrangement the principal has to make while still in full use of their mental capacities.
If the incapacitated person only requires someone to assume responsibility for medical decisions, an advance medical directive enables the principal to appoint a chosen representative. Otherwise, a spouse, children, or other family members can make medical care decisions for the principal.
Control Your Future with a Durable Power of Attorney
Many people, especially seniors, are concerned about the possibility of needing a guardian someday as their health declines. It may be difficult to predict whom a circuit court will appoint as that guardian in some cases.
The solution is selecting someone in advance to manage the principal’s affairs in case of an illness or incapacity. Once the principal decides on such an arrangement, the next step is obtaining a durable power of attorney for the chosen person, which he or she will use when the need arises.
The possibility of guardianship is not something you should leave to chance. Contact our team at PJI Law, PLC for reliable legal counsel on all matters related to appointing a power of attorney, advance medical directives, and estate administration.
PJI Law, PLC: Estate Planning Attorneys in Fairfax, VA
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.
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