Guardians and conservators are appointed to represent and protect the interests of incapacitated persons. Incapacitation means the person is unable to make decisions on their own. The incapacitated person is referred to as the “ward.” Statutory authority for these appointments can be found in Virginia Code 64.2-Chapter 20.
A guardian acts to make decisions with regard to the ward’s healthcare and living conditions but does not necessarily have authority to spend money or make decisions regarding the ward’s finances. A separate appointment as conservator is required to obtain authority over an incapacitated person’s financial affairs.
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.