Guardianship and Conservatorship in Virginia
On Demand Webinar
In this free On-Demand Webinar, attorney Christopher Mays will discuss the Guardianship and Conservatorship process in Virginia. This process can impact a number of important issues for seniors, including how care arrangements can be made, management of finances and loss of important legal rights.
As part of this introductory webinar, we will discuss: what Guardianship and Conservatorship is; an Overview of the Virginia Court process and what happens once a Guardian or Conservator is appointed.
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How Guardianship is defined in Virginia
Virginia Code Section 64.2-2000 defines a guardian as "a person appointed by the court who...is responsible for the personal affairs of an incapacitated person, including responsibility for making decisions regarding the person's support, care, health, safety, habilitation, education, therapeutic treatment, and...residence."
As a practical matter, the guardian will coordinate care for a person that has been found to be unable to do so for by himself or herself. A guardian can often be appointed for an older person who requires care or assistance with activities of daily living or medical treatment. Guardians are also appointed for younger persons who may be unable to manage their own affairs due to disability.
How Conservatorship is defined in Virginia
Virginia Code Section 64.2-2000 defines a conservator as "a person appointed by the court who is responsible for managing the estate and financial affairs of an incapacitated person."
Once appointed, the conservator will have legal authority to access the financial accounts of the person who is the subject of the conservatorship ("ward"). The conservator will have the duty to manage the assets and income of the ward for the ward's benefit. Additionally, the conservator will be required to file an inventory and regular accountings with the Court through the office of the Commissioner of Accounts. These filings become a publicly available record of all actions taken by the Conservator for the benefit of the ward.
What is an "incapacitated person?"
incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator. A finding that the individual displays poor judgment alone shall not be considered sufficient evidence that the individual is an incapacitated person within the meaning of this definition.
What is the legal impact of guardianship and conservatorship?
A determination that a person is incapacitated and the appointment of a guardian or conservator can result in the loss of several important rights for the person who is the subject of the court proceedings (often called the "Respondent"). For example, once a guardian is appointed, the Respondent can lose the right to drive, the right to purchase or transport firearms, the right to change his/her marital status, the ability to enter into contracts and the right to vote. Appointment of a conservator can result in a Respondent losing the ability to access and manage his or her finances.
What is a Guardian ad litem ("GAL") and what do they do?
A guardian ad litem (or "GAL") is an independent attorney appointed by the Court in every guardianship or conservatorship case who is responsible for protecting the rights and interests of the Respondent. The GAL will conduct an independent investigation into the circumstances of the case and make recommendations on issues such as whether a guardianship is needed, whether the Respondent should have defense counsel appointed, and the appropriateness of persons proposed to serve in the role of guardian and conservator.
The GAL will typically make a written report to the Court. However, the Court is not bound by the findings or recommendations of the GAL.
Can someone challenge or 'fight' the guardianship?
The Respondent in a guardianship or conservatorship has the right to oppose the request for the Court to appoint a guardian or conservator. The Respondent has the right to request a trial on the issue and present witnesses or evidence to argue against the guardianship or conservatorship. If desired, the Respondent can even request a trial by jury.
Family members of the Respondent may also participate in the guardianship proceedings to either oppose or support the request for appointment of a guardian or conservator.
Is a guardianship or conservatorship permanent?
Not necessarily. Per Virginia Code Section 64.2-2012, the competency of a Respondent may be "restored" and the guardianship or conservatorship "terminated or modified." So as circumstances change, participants in the proceedings may go back to court and request that the guardianship or conservatorship be changed as well.
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