If a loved one is no longer able to make decisions about his or her finances, healthcare or issues involving their daily lives, court intervention may be needed to keep the person independent, healthy and safe. Through the Virginia court system if a judge decides a person is incapacitated, others can be appointed to make financial, medical and other decisions on the person’s behalf.
This process involves different people in different roles:
- A person who’s claimed to be so disabled that help with decision making is needed is the respondent.
- If the respondent is deemed so disabled legal rights need to be taken away, he or she is an incapacitated person.
- A guardian is a person who handles the medical and general affairs of the incapacitated person.
- A conservator handles the financial affairs of the incapacitated person.
- If both are needed, the roles may be filled by the same person.
Adult Guardianship or Conservatorship
An adult guardianship or conservatorship is created if a Virginia circuit court decides a respondent can’t manage his or her own personal or financial affairs and appoints a guardian and/or conservator to help the incapacitated person.
- Anyone could file a petition with a Virginia Circuit Court claiming there’s a respondent who’s sufficiently disabled he or she needs a guardian and/or conservator appointed.
- A hearing takes place where evidence is presented on why a guardianship and/or conservatorship is necessary and, if so, who should be appointed for those roles.
- The court appoints a guardian ad litem as part of the process. This is an attorney representing the interests of the respondent, not the respondent (who has a right to have his or her own attorney). The guardian ad litem will tell the court what he or she believes is in the best interests of the respondent.
- The guardian ad litem files a report, advises the court whether or not the respondent needs a guardian or conservator, the extent of the proposed duties and powers the guardian or conservator and who, if anyone, should be appointed guardian and/or conservator.
A medical report evaluating the condition of the respondent would also be filed with the court. It’s prepared by a licensed physician, psychologist or other professional experienced with the respondent’s mental and/or physical conditions.
The Court Decides if the Respondent Needs a Guardian or Conservator
The court looks at the following to decide if the respondent needs a guardian or conservator and if so, their powers and duties,
- The respondent’s limitations,
- The development of the respondent’s maximum self-reliance and independence,
- The availability of less restrictive options such as medical advance directives or powers of attorney,
- The need to protect the respondent from neglect, exploitation or abuse,
- The actions needed to be taken by the guardian and/or conservator, and,
The suitability of a proposed guardian or conservator.
The court decides whether the respondent is incapable of receiving and evaluating information
The court decides whether the respondent is incapable of receiving and evaluating information effectively or responding to people, events or what is going on around him or her to the point he or she lacks the capacity to do either or both of the following,
- Meet the essential requirements for his or her health, care and safety without the help or protection of a guardian, or,
- Manage property or financial affairs or provide for his or her support without the help or protection of a conservator.
Guardianship and conservatorship are considered as a last resort. A guardianship or conservatorship ends when the incapacitated person dies or it can be terminated or modified if his or her condition improves. This would require another petition to be filed with the circuit court and another hearing.
Cravens & Noll is here to help those in Central and Western Virginia with guardianship and conservatorship issues and hearings. If you or your family have any questions or need representation in such a matter schedule an initial consultation today.