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Law Issues
Guardianship and Conservatorship for the Incompacitated Person
by Beth M. Coyne, Esq.
bcoyne@winchesterlaw.com
Although it may not be a subject upon which anyone wishes to dwell, it may in the future become necessary for a guardian or conservator to be appointed for someone in your family who is incapacitated and unable to manage his person and his property. This brief article will give a very general overview of the following:
What is an incapacitated person, a guardian, and a conservator?
When may appointment of a guardian or conservator be appropriate?
When may appointment of a guardian or conservator not be appropriate?
What are the steps in Virginia to appoint a guardian and/or conservator?
1. What is an incapacitated person, a guardian, and a conservator?
An incapacitated person is a person who has been found by the court to be incapable of receiving and evaluation information effectively or responding to people, events, or environments to such an extent that he lacks the capacity to care for his health, care, safety or therapeutic needs, or manage his property or financial affairs.
Once appointed by the Circuit Court, a guardian oversees the management of the "person" of the incapacitated person. That is, a guardian is empowered to make decisions affecting the personal situation of the incapacitated person, such as health care decisions, where the person is going to live, etc. On the other hand, a conservator oversees the estate and finances of the incapacitated person: their income, their investments, their bills, etc. Very often, if appointment of a guardian is necessary and appropriate, then appointment of a conservator is also. That is because a person who is incapable of taking care of himself is usually not capable of taking care of his money either. However, it is possible that the court may be asked, or may decide, to appoint only a guardian, or only a conservator, for a person.
2. When may appointment of a guardian or conservator be appropriate?
A guardian and conservator may be appropriate for a person who, due to some illness or incapacity, cannot manage their own affairs. One usually thinks of an elderly and infirm person, but very often a guardian and conservator is needed for a person many years younger who may be mentally and/or physically impaired to the point that, once he turns 18, he cannot do the things other 18 year olds, and older, can do for himself.
3. When may appointment of a guardian or conservator not be appropriate?
Appointment of a person to be another's guardian or conservator is a significant encroachment upon the alleged incapacitated person's fundamental liberties, i.e., his right to make his own decisions about himself and his affairs. Therefore, it should never be undertaken lightly. Also, it can sometimes be cumbersome, expensive and inflexible with respect to management of the person and property. However, particularly in the case of younger mentally and/or physically impaired persons, it may be the only solution. In addition, if an elderly infirm person has not planned for incapacity by executing appropriate documents such as a power of attorney or trust, then it may be the only solution as well.
4. What are the steps in Virginia to appoint a guardian and/or conservator?
A petition for the appointment of a guardian or conservator is initiated by formal petition to the Court with notice to at least three persons (in the following order of priority - a spouse, an adult child, a parent, an adult sibling, or other known relative) and the opportunity for a full adversarial hearing. The court is required to appoint a Guardian Ad Litem (an attorney to act in the best interests of the alleged incompetent person) to protect the interests of the incapacitated person in the proceeding. A jury trial can be requested by the alleged incapacitated person, but most often a judge, not a jury, presides over the hearing and decides whether a guardian or conservator needs to be appointed. Upon presentation of clear and convincing evidence that a guardian or conservator is necessary for the alleged incapacitated person, the court appoints a "suitable person" (who is usually the same person who petitioned the Court for the appointment) to be the guardian or conservator.
Please call our office for an appointment for more information.
(C)2000 Winchester Law Group,
P.C. All rights reserved. No copyright claim to the referenced text
prepared by the Virginia State Bar. The preceding article is general
in nature and is not legal advice, which you should obtain from
a licensed Virginia attorney. Nothing in the article or this Web
site may be considered as giving the reader an attorney-client relationship
with any attorneys associated with Winchester Law Group, P.C. Call
540-667-6400 for an appointment to meet with one of our attorneys.
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