By: Chris Arakaky

According to Virginia law, a person is legally considered incapacitated if a court finds they are unable to evaluate information, interactions with others, and their surroundings to such an extent they lack the capacity to:

  • (i) provide for their health, care, safety, or therapeutic needs without the assistance or protection of a guardian; or
  • (ii) manage property or financial affairs or provide for their support or for the support of their legal dependents without the assistance or protection of a conservator

(See: Virginia Code § 64.2-2000)

Guardians and conservators are fiduciaries of the incapacitated individual. They are legally bound to act in the incapacitated person’s best interest. The circuit court will appoint a guardian and/or conservator if it determines the individual meets the threshold for legal incapacity after a petition has been filed. Usually, the petition is filed by a party who has concerns about the individual’s ability to care for themselves, such as a relative, neighbor, or close friend. 

An individual alleged by the petitioner to be incapacitated is referred to as the respondent. The respondent has due process rights before a court can appoint a guardian or conservator over them. They must be notified of the court hearing and they are able to attend, obtain legal representation, call on and cross-examine witnesses, and subpoena records and documents. A guardian ad litem is also appointed by the court. The guardian ad litem represents the interests of the respondent but does not advocate for them. The guardian ad litem is a court appointed licensed attorney who meets with the respondent, advises them of their rights, and investigates the surrounding facts. 

Once finished, the guardian ad litem drafts a report for the court advising:

  • Whether a guardianship and/or conservatorship is necessary in this situation; and, if yes,
  • What extent should the powers of the guardian and/or conservator be

If appointed by the court, the fiduciary will have ongoing duties with court oversight. A guardian must regularly visit the incapacitated person to assess their decision-making ability, involve them in decisions to the extent possible, and file yearly reports regarding their health, living conditions, etc. The conservator must file annual accountings with the local commissioner of accounts and diligently manage their assets, bills, etc. 

Guardianship/conservatorships can be very time-consuming, emotionally draining, and costly, especially if the petition is contested. To avoid the necessity for a guardianship/conservatorship petition, a person should execute a durable power of attorney and an advance medical directive.

Durable Power of Attorney         

A durable power of attorney allows a person to authorize an attorney-in-fact, or agent, to manage their assets while they are incapacitated. It is called “durable” because the power of attorney continues in full force even while the principal is incapacitated. A durable power of attorney can be springing or non-springing, meaning effective upon the principal’s incapacity or effective immediately, respectively.

Advance Medical Directive

An advance medical directive is a health care power of attorney. Instead of authorizing the agent to manage their financial accounts or pay their bills, the principal gives the agent power to make health care decisions for them if they are unable to do so. The advance medical directive will also often include a “living will.” A living will expresses your wishes regarding continued life support if you have a terminal illness.

Standby Guardianship

A standby guardian designation is relevant to people with minor children or children of whom they are the legal guardian of, rather than being universally relevant like a durable power of attorney or advance medical directive. Virginia law allows a parent or guardian to temporarily designate a “standby” guardian to care for a minor upon certain triggering events, including incapacity. Unlike a last will and testament, this allows you to appoint a guardian for your minor children before you pass away.

Other Considerations

These documents can greatly reduce the likelihood of a formal legal proceeding and excessive court involvement. However, Virginia courts will always have the final right to determine if a court-appointed fiduciary is necessary in any situation. If the agent/fiduciary designated by the incapacitated individual is abusing their power or not acting in the principal’s best interest, they can be removed and held liable for damages. It is also possible that the agent appointed by the incapacitated person declines to serve, dies, or they themselves become incapacitated, which may necessitate further court involvement. 

To learn more about Dunlap Bennett & Ludwig and how we assist you, contact us by calling 800-747-9354 or emailing clientservices@dbllawyers.com.


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Posted in: Estate Planning

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