Guardianship

Guardianships

BACKGROUND.  In Virginia appointment of someone to make personal decisions and supervise living arrangements is called “Guardianship”. The process of appointing someone to manage the property of an incapacitated individual is “Conservatorship”.

WHO STARTS THE PROCESS? Usually these procedures are initiated by someone close to the incapacitated person.

APPOINTING ONE OR BOTH. Often when a person’s ability to take care of him/herself has reached the point that court intervention is sought, it is necessary to appoint both a Guardian and a Conservator. However, it is possible to appoint either a Conservator or a Guardian without appointing the other. Nonetheless, the standard for appointing a Guardian of the person, which removes most of an individual’s civil rights, is stricter than the standards for appointing a Conservator for the estate of someone who is having difficulty managing his/her business affairs. It is fairly common for an older person to begin to have trouble paying bills, keeping up with bank balances and so on, and yet be capable of making personal decisions and directing his/her own care. The goal of these proceedings is to find the least restrictive appointment possible that will protect the Ward but also encourage the greatest level of independence under the circumstances.

LIMITED APPOINTMENTS. It is possible for a court to appoint a Limited Guardian or Limited Conservator who is confined to certain types of duties, in order to encourage the greatest independence on the part of the Ward. A Limited Guardian might be authorized to make medical and personal decisions to the extent that the Ward has not made other provisions, such as executing an Advance Health Care Directive.

PROCEDURE IN GENERAL:

  1. A Petition for Appointment of Guardian or Conservator or both, along with other documents, is filed with the Court.
  2. The Court appoints a “Guardian ad Litem,” usually an attorney, to represent the person alleged to be incapacitated. The GAL will meet with the person, investigate the situation and submit a report to the Court
  3. The Court will have a hearing on the petition usually on a Friday morning. The Petitioners, their Attorney and the GAL will be present. The alleged incapacitated person may or may not be present.
  4. If after the hearing the Court finds that a protective appointment is appropriate, it will issue an Order of Appointment and Letters of Guardianship or Conservatorship or both. If a Conservator is to be appointed a bond must be obtained in the amount specified by the court. There is no bond for Guardians.

As the number of older person’s increases, laws and practices regarding protective proceedings are being reviewed and revised. Current laws fall short of providing perfect solutions, but even with their shortcomings they offer a safety net in those situations in which one is needed.

Fairfax Virginia Guardianship Attorney