The Difference Between a Conservator and a Guardian

If an adult can no longer manage their personal affairs the court will appoint a substitute decision maker.  This may include financial, medical, and/or personal decisions.  An adult who has lost their ability to make these kind of decisions is referred to legally as being “incapacitated.” Guardianship or conservatorship is a legal relationship between a competent adult and an incapacitated person (the ward) who can no longer take care of his or her own affairs.  But what exactly do those terms mean?  Let’s look first at what the law considers to be an incapacitated adult.

An incapacitated person is an adult who has been found by the court to be 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:

1. Meet the essential requirements for his/her health, care, safety, or therapeutic needs without the assistance or protection of a guardian
2. Manage property or financial affairs or provide for his/her support or for the support of legal dependents without the assistance or protection of a conservator.

Poor judgment is not considered sufficient evidence that an individual is an incapacitated person.  In Virginia, as in most states, it isn’t enough to say that a person is making bad decisions. Individuals are free to make bad choices and decisions. To show someone is “incapacitated,” the person needs to be incapable of understanding the difference between a good decision and a bad one. Essentially, they lack the capacity to weigh risks vs. rewards.

What is a guardian?

A guardian can be any competent adult, often the ward’s spouse, another family member, or even a close friend who is appointed by the court and is responsible for the personal affairs of the incapacitated person.

If no one close or related to the ward is available, the court will appoint a “professional” guardian, or even at times an agency. A guardianship may include authority to make decisions regarding support, safety, education, if applicable, medical treatment and therapy and overall care.  Depending on the court order, it can also include where and how they live.  In Virginia, the guardian’s main role is to oversee healthcare decisions and medical treatment.

A guardian may have access to medical records and will be able to speak with healthcare providers and make healthcare decisions.

What is a conservator?

Like a guardian, a conservator is a person appointed by the court to manage and be responsible for the personal finances and the estate of the person who is deemed to be incapacitated with their best interests in mind.  Conservatorship is often quite broad.  A conservator may enter into contracts or even file lawsuits on behalf of the ward.

When is it necessary to have a guardian or conservator?

When a guardian and/or conservator is appointed by the court, it removes some or all of the incapacitated individual’s rights.  This option should be used to protect the individual after all other alternatives have been exhausted.  The court will consider the following:

• The person has to be incapacitated to the point they can no longer make decisions for themselves. That means that they have reached a point in their life, either due to disease, age or injury, that they cannot take information they are given and make a well-informed decision. That could mean decisions on financial matters or on their own healthcare.
• They may exhibit signs of memory loss or you may notice changes in their health over time.
• They may have lost the ability to care for themselves on their own, including, but not limited to bathing, dressing, toileting, and eating.
• They display the loss of ability to properly manage their lives for themselves, such as their finances, their property, or to provide adequately for themselves.

While the ability to make decisions on their own is a problem that could be considered a signal that an individual may need a guardian, it does not include, as stated above, those who just make bad choices in their lives. This has to be determined by the courts.

Types of Guardians and Conservators

The scope of authority of a guardian or conservator can range from full guardianship with no limitations to make decisions for the ward, to limited guardianship where help is needed for only specific items. There are several different types of conservatorship and guardianship levels in Virginia, including:

• Full guardianship
• Limited Guardianship
• Emergency order for adult protective services
• Standby guardian
• Full conservator
• Limited conservator

Taking on full guardianship or conservatorship should not be done lightly and it should be something that is done only as the last resort. Because this involves a profound loss of freedom, Virginia law requires that guardianship and conservatorship be imposed only when less restrictive alternatives have been proven to be ineffective.  These may include:

• Power of attorney
• Representative or protective payee status
• Revocable trust

Filing For Guardian and Conservatorship

Without a power of attorney in place, the only way to gain authority over an incapacitated person is through guardianship and conservatorship proceedings in the Circuit Court. A judge decides whether the person is incapacitated and who should act as guardian and/or conservator.

A guardian’s authority can be broad or it can be limited in nature and duration. Authority may be limited depending on the ability of the incapacitated person to take care of his own personal, health, and safety needs. The extent or limitations of authority will be enumerated in the court’s Order.

Similarly, the authority of a guardian may be broad or limited in nature. The court may grant authority over all of the ward’s financial affairs or may only be permitted to exercise authority over one account for limited purposes.

When a petition is filed for guardianship and conservatorship, the court will appoint a guardian ad litem to investigate the respondent’s condition and report the same to the court. The guardian ad litem is responsible for providing a copy of the petitions to the incapacitated person and advising him of his rights during the proceedings. The incapacitated person may elect to hire their own attorney to represent their interests in the proceedings.

After the guardian ad litem’s investigation is complete, a hearing will be held on the petition. The respondent can request a jury trial, can present his own evidence, and has the right to confront and cross-examine witnesses. Following the standards set in Virginia Code 64.2-2007, the court will consider:

(i) the limitations of the respondent;

(ii) the development of the respondent’s maximum self-reliance and independence;

(iii) the availability of less restrictive alternatives, including advance directives and durable powers of attorney;

(iv) the extent to which it is necessary to protect the respondent from neglect, exploitation, or abuse;

(v) the actions needed to be taken by the guardian or conservator; (vi) the suitability of the proposed guardian or conservator; and (vii) the best interests of the respondent.

After the hearing, the court may order appointment of a guardian and conservator while giving deference to the known wishes of the respondent. The guardian and conservator must file reports each year concerning the ward’s physical condition and financial status.

Appointment of a guardian and conservator essentially removes the ward’s rights to make decisions for himself, so it should only be used as a last resort when other options are not available. If you have a loved one who is incapacitated, you should consult with an attorney to determine whether guardianship and conservatorship proceedings are an option.

Contact Melone Hatley today

If you feel a friend or loved one is in need of a guardian or conservator, it is best to contact an experienced attorney to help you. The knowledgeable attorneys at Melone Hatley can explain and support you through the entire process and provide the different means necessary for getting an evaluation to make sure your situation is handled properly, legally, and with discretion.

For more information and to see if your situation is one that could be helped by the guardianship or conservatorship process, contact Melone Hatley today. They can assist you in making the right choice for guardian or conservator in Virginia to properly care for your loved ones.