In the Commonwealth of Virginia, a guardian may be appointed by a court to care for a person who is considered incapacitated.
A judge will first decide if a person is incapacitated, and if no documentation is in place to name a family member or other person as a guardian, the judge will then appoint a guardian.
This guardian will be responsible for overseeing the other person’s affairs, while a conservator is in charge of the person’s financial affairs. The court may decide to impose limitations on guardianship depending on the individual circumstances, but guardianship is typically reserved as a last option for care.
A guardian will be appointed if a person has a physical or mental problem that prevents him or her from taking care of basic needs and if the person has no family member or other person available to care for them.
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.
The guardian will make decisions about the livelihood of the person, including responsibilities related to health, food, and residence.
Once appointed by a judge, a conservator must take inventory of the person’s property and file the appropriate documents. The conservator will then manage the person’s property while keeping his or her finances separate. The conservator is, however, allowed to make investments and financial decisions on behalf of the incapacitated person.
Guardianship and conservatorship involve complicated, time-consuming processes that often are left to the court’s discretion. With careful planning and documentation prepared in advance, however, these court processes can be avoided or shortened. While working with our attorneys at Melone Hatley, P.C., we can assist you in planning for the unexpected when you are still able to make your own decisions.
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