Guardianship/Conservatorship
Overview
- Important Definitions:
- Incapacitated Person: The person for whom a guardian or conservator is appointed.
- Incapacitated person referred to as individual hereinafter.
- Guardian: The person appointed to handle the affairs of the individual.
- Conservator: The person who handles the financial affairs of the individual. The guardian and conservator may be the same person.
- Incapacitated Person: The person for whom a guardian or conservator is appointed.
When an individual turns 18, they have the capacity to make their own decisions. All decision-making rights are transferred by law from the parent or guardian to the individual unless a court appoints a guardian (all affairs) or conservator (financial affairs only). Guardianship, however, removes all of an individual’s rights and should be considered only as a last resort, with emphasis placed on limiting the guardian’s powers to the extent possible. Less restrictive alternatives that will protect the interests of the individual without involving a court should always be considered.
| Guardianship (over the person) | Conservatorship (over finances) |
|---|---|
| Where to live & medical decisions. | Pay bills, open accounts. |
| Lose right to own firearm, marry, drive, vote, sign contracts. | Protect from bad influences. |
| May be limited. Standby guardians can be appointed. | Control over income. |
| Rights to drive and vote can be retained. All rights have the potential to be restored through court proceedings. | Annual/triennial accounts to Commissioner of Accounts. |
Duties of the Guardian/Conservator
A guardian or conservator is not liable for the acts of the individual, unless the guardian or conservator is personally negligent. Guardians and conservators are not required to spend their own funds to care for the individual.
| Guardian | Conservator |
|---|---|
| Visit the individual and encourage their participation in decisions as often as necessary to know the individual's capabilities, limitations, and needs. | Take care of and preserve the assets and income of the individual. |
| File annual reports with the local Department of Social Services regarding the individual's medical condition, living arrangements, and the guardian's recommendations. | File annual accountings with the Commissioner of Accounts showing all money and property received and disbursed on behalf of the individual. |
Duration of Guardianship/Conservatorship
A guardianship or conservatorship can be terminated or modified if the individual’s condition changes. This requires another petition and hearing in circuit court.
The Process
The process is the same regardless if the individual is 18 or 85. Start by contacting an attorney.
Any individual may file a petition with a Virginia Circuit Court alleging that there is an individual Virginia resident who needs to have a guardian or conservator appointed to manage some or all of his affairs. The individual alleged to be incapacitated in the petition is called the respondent.
- Meet the essential requirements for his health, care, and safety without the assistance or protection of a guardian.
- Manage property or financial affairs or provide for his or her support without the assistance or protection of a conservator.
Lack of good judgment by the respondent is not enough for the court to find an individual incapacitated.
Alternatives to Guardianship/Conservatorship
Guardianship and conservatorship should always be looked upon as the last resort. An individual’s rights and freedoms should not be taken away unless absolutely necessary.
- Advance Directive for Healthcare:
- Includes medical power of attorney and HIPAA release
- Not as certain as guardianship
- Power of Attorney for Special Education:
- Helps make decisions at IEP meetings
- Representative Payee:
- For SSI / SSDI payments
- Durable Power of Attorney (finances):
- Adult child with capacity
- Gives you the right to manage finances
- Takes away no rights
- Can monitor spending, get alerts
- Joint Accounts:
- Must consider asset limitations for benefits
- Special Needs Trust:
- Trustee manages money left as inheritance
Another alternative to guardianship and/or conservatorship is a Durable General Power of Attorney. However, the individual must have planned ahead and signed the power of attorney while they were able to understand what they were doing. Additionally, the individual may have the capacity to make decisions but they may still need/want help managing money, signing contracts and obtaining services. With a Durable Power of Attorney, the individual can give a guardian or conservator the authority to manage their finances and provide the supported decision-making that they need.
