Guardianship/Conservatorship

Overview

Disclaimer: The following information provided here is for informational and educational purposes only and is not a substitute for legal or medical advice.

Guardianship or over an adult is created when a Virginia circuit court determines that a person is unable to manage their own personal or financial affairs and appoints a guardian and/or conservator for that person.

Important Definitions:
- IncapacitatedA court designation of a person as incapable of receiving and evaluating information effectively; the criteria used to determine if a guardian may be needed. Person: The person for whom a guardian or conservator is appointed.
  - Incapacitated person referred to as person hereinafter.
- Guardian: The person appointed to handle the affairs of the person.
- Conservator: The person who handles the financial affairs of the person. The guardian and conservator may be the same person.

When a person 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 person unless a court appoints a guardian (all affairs) or conservator (financial affairs only). Guardianship, however, removes all of a person’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 person without involving a court should always be considered.

Parents of special needs children who will be seeking Guardianship of their adult child should begin gathering information around the child’s 17th birthday and be ready to petition the courts when the child is 17.5. Guardianship terminates the rights of the child, but can be restored as they grow and develop. Both are court proceedings that can be combined, though must be supervised by court.

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 person, unless the guardian or conservator is personally negligent. Guardians and conservators are not required to spend their own funds to care for the person.

Guardian	Conservator
Visit the person and encourage their participation in decisions as often as necessary to know the person's capabilities, limitations, and needs.	Take care of and preserve the assets and income of the person.
File annual reports with the local Department of Social Services regarding the person'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 person.

Duration of Guardianship/Conservatorship

A guardianship or conservatorshipLegal status defined by the court determining who is responsible for managing the estate and financial affairs of a person with disabilities. can be terminated or modified if the person’s condition changes. This requires another petition and hearing in circuit court.

A new guardian or conservator could be substituted if the guardian or conservator that was originally appointed can no longer serve. However, this also requires a petition and hearing before the circuit court.

A guardianship or conservatorship ends when the person dies. The conservator has a duty to turn over whatever assets they still have in their possession to the administrator or executor of the person’s estate and to do a final accounting for the Commissioner of Accounts.

The Process

The process is the same regardless if the person is 18 or 85. Start by contacting an attorney.

Any person may file a petition with a Virginia Circuit Court alleging that there is a Virginia resident who needs to have a guardian or conservator appointed to manage some or all of their affairs. The person alleged to be incapacitatedA court designation of a person as incapable of receiving and evaluating information effectively; the criteria used to determine if a guardian may be needed. in the petition is called the respondent.

The petition must be filed in the Circuit Court for the city or county in which the respondent lives or where they lived immediately prior to moving to a nursing home, assisted living facility or other institution. After the petition is filed, a hearing will be scheduled for the court to hear evidence as to why a guardianship and/or is necessary and who should be appointed if it is necessary.

A guardian or conservator will be appointed when it is determined by the court that the respondent is incapable of receiving and evaluating information effectively or responding to people, events, or what is going on around the person to such an extent that the person lacks the capacity to do either or both of the following:

Meet the essential requirements for their health, care, and safety without the assistance or protection of a guardian.
Manage property or financial affairs or provide for their support without the assistance or protection of a conservator.

Lack of good judgment by the respondent is not enough for the court to find a person incapacitated.

Alternatives to Guardianship/Conservatorship

Guardianship and conservatorshipLegal status defined by the court determining who is responsible for managing the estate and financial affairs of a person with disabilities. should always be looked upon as the last resort. A person’s rights and freedoms should not be taken away unless absolutely necessary.

Advance DirectiveA set of instructions given by a person specifying what should be done for their health in the event that they are no longer able to make decisions due to illness or incapacity. More for Healthcare:
- Includes medical power of attorneyWritten document that gives legal authorization for one person to act on behalf of another. and HIPAA release
- Not as certain as guardianship
Power of Attorney for Special Education:
- Helps make decisions at IEPA legally-binding document that sets out the rationale for providing special education supports and services to your child, specific objectives that your child is to achieve during the year, and enumerates which related services, modifications, and accommodations, if any, he or she will receive. More meetings
Representative Payee:
- For SSI / SSDI payments
Durable Power of AttorneyWritten authority giving a parent or other person (agent) power to make decisions on behalf of the person with a disability (the principal). Agent may act even if principal becomes incapacitated. (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 TrustA financial arrangement by which a person (grantor) makes a gift of funds to a trustee to be used for the sole benefit of the beneficiary living with a disability.:
- TrusteeThe person or organization who oversees assets and administers the provisions of a Special Needs Trust – including investing, account reporting, tax reporting, check writing, and disbursements – on behalf of the trust’s named beneficiary. More manages money left as inheritance

Another alternative to guardianship and/or conservatorship is a Durable General Power of Attorney. However, the person must have planned ahead and signed the power of attorney while they were able to understand what they were doing. Additionally, the person 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 person can give a guardian or conservator the authority to manage their finances and provide the supported decision-making that they need.

What are Waivers?

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