When an individual either through birth, illness, accident, etc. has been incapacitated to the point that they can no longer make pertinent life decisions a court may appoint them a Guardian or Conservator. Both of these positions grant powers to the Guardian or Conservator to make necessary financial or healthcare-related decisions on behalf of the incapacitated individual.

The term “incapacitated” is a legal term of art used in specific scenarios where the court deems a person unable to make decisions regarding their health and/or finances for themselves. Generally, when someone who, due to an illness or disability is unable to make decisions about his healthcare, living situation or other non-monetary personal matters, the court may appoint them a Guardian. The incapacitated individual is now deemed a “ward” of the Guardian. An example of when a Guardian is appointed in lieu of a Conservator would be, a woman suffers an accident which renders her unable to speak or move. If the woman had no ascertainable assets or income she likely only needs a Guardian to oversee minor financial decisions such as social security, VA benefits; while in the meantime she needs the Guardian to take full responsibility of her healthcare due to her incapacitation.

In contrast, the court may appoint a Conservator to an incapacitated person if they have no discernable ability to control their own finances but can make decisions regarding their health. For example, an individual who, due to an accident or mental illness, can live a semi-autonomous life but has lost or never had the ability to even basic mathematical functions may need a Conservator. In that scenario, the Conservator would handle all the finances for the individual while taking no control over healthcare decisions. Both “Guardian” and “Conservator” are terms which are used with some interchangeability amongst the states.

Routinely courts appoint both a Conservator and Guardian for a single incapacitated individual because they are incapable of taking care of both their financial and healthcare needs. This may either result in one person taking on both positions, or two separate individuals each taking on one position. Courts often attempt to appoint the closest family member, such as spouse, partner, parent or adult child. If none of these persons exist, are unavailable, or unsuitable for the task the court will appoint an extended family member or close friend. If no one can take on the task the court will appoint a neutral attorney, trained on these matters, to assist.

In Virginia, the first step in a petition for Guardianship or Conservatorship is to file said petition in the circuit court of the city or county of the alleged incapacitated person resides. Once filed, the court will schedule a hearing for the court to hear evidence supporting the petitioner’s claim along with any opposition from interested, notified parties. These relevant parties usually include spouses, adult children or siblings, or other adult relatives. These individuals may oppose the appointment of a Guardian or Conservator or, in the alternative, argue for the position themselves.

The court will appoint a Guardian ad litem for the duration of the petition. The Guardian ad litem is an attorney who represents the interests of the alleged incapacitated individual and investigates facts on the matter before reporting them to the court. The report includes recommendations on whether the alleged incapacitated individual needs a Guardian or Conservator and if so the extent of the Guardian or Conservator’s duties and powers. In addition to the Guardian ad litem’s report, a medical report analyzing the mental and physical conditions of the individual must be prepared and submitted. Only a licensed psychologist or physician may submit such a report.

Once the hearing is held the court will consider several factors in determining whether a Guardian or Conservator is needed, and if so, the scope of the duties and powers. These factors include limitations of the individual; development of the individual’s self-reliance and independence; availability of less restrictive alternatives; and, the extent to which it is necessary to protect the individual from neglect.

If the Judge agrees and appoints either a Guardian, Conservator, or both, then those persons retain that position for the life of the incapacitated person. The Guardian or Conservator may resign or be substituted from the position should their circumstances change, but any withdrawal must include a hearing before the court which would result in a substitution of guardians. The Conservator will pay a bond every year for the amount of money in his/her care.  He or she also files a yearly accounting with the County Commissioner of Accounts and year reports to the Department of Social Services.  This is a very labor intensive job.  Not only can we assist you in being appointed a Guardian or Conservator in Virginia but we can also continue to assist you with the filings after you are appointed.  Call our firm today and speak to one of our experienced attorneys.