Guardians, Conservators, and Alternatives for Incapacitated Adults
In Virginia, when an individual reaches the age of majority (18 years old), that person is automatically granted the right to make his or her own decisions regarding healthcare, residence, finances, and other day-to-day needs.
However, in some cases, a soon-to-be adult may not be capable of making informed decisions about these issues, usually due to severe cognitive and/or physical impairments. Other individuals may not be able to care for themselves later in life due to physical or cognitive limitations or conditions due to age, injuries, illness, or permanent disability.
In such situations, the incapacitated adult typically needs a guardian and/or conservator appointed by the court to ensure support and safety. At Quinn Law Centers, our compassionate and knowledgeable attorneys will work closely with you to help establish guardianship or conservatorship.
We have experience in handling guardianships, conservatorships, and alternatives to guardianship. Please contact our office below with any further inquiries about these services.
What is a Guardian or Conservator?
In Virginia, a guardian is an individual that a court appoints to make decisions regarding the personal affairs of an incapacitated adult person. A conservator is an individual appointed by the court responsible for handling the estate and financial affairs of an incapacitated adult person.
When both roles are needed, the same person can serve as both guardian and conservator for an incapacitated adult. The purpose of both is to look out for the best interests of an incapacitated adult when that individual no longer can do so.
How are Guardians and Conservators Appointed?
For a guardian to be appointed, a court must find that the adult lacks the capacity to meet the essential requirements for his or her health, care, safety, and/or therapeutic needs without the assistance or protection of a guardian.
For a conservator to be appointed, a court must find that the adult lacks the capacity to manage property or financial affairs without the assistance or protection of a conservator. Both of these standards are very high bars – a person must not simply be prone to making bad decisions but rather wholly incapable of making informed decisions at all.
A court requires an independent finding and evaluation by a licensed professional (typically a medical or mental health provider) to protect the alleged incapacitated adult and help the court determine the extent of their incapacity.
Additionally, the court will appoint a guardian ad litem (“GAL”) to represent the interests of the alleged incapacitated adult. The GAL is not the incapacitated adult’s attorney, and the incapacitated adult has the right to hire an attorney in addition to having the GAL.
Are There Any Alternatives?
While guardianship and/or conservatorship may be appropriate for some situations, they are drastic measures that take away the right of an incapacitated adult to make one’s own decisions regarding personal or financial affairs.
In most cases, a person under guardianship loses the right to drive, vote, and marry, among other rights. Accordingly, guardianship may not be appropriate for every situation, and other options are available.
A durable power of attorney may be a suitable alternative to guardianship or conservatorship. With a durable power of attorney, an individual can appoint an agent to manage their property and financial affairs if they become incapacitated. A durable power of attorney must be created before an individual becomes incapacitated.
Similarly, an advanced medical directive also may be a viable alternative to guardianship. An advanced medical directive allows an appointed agent to make medical decisions for an individual when one can no longer do so.
This document allows the appointed agent to do such things as authorize treatment, hire medical providers, authorize admission into a hospital, deal with insurance companies, and make end-of-life decisions consistent with the expressed wishes of the individual.
Guardianship and Conservatorship FAQ
What are the duties of a conservator?
A conservator must preserve the income and assets of the incapacitated adult and file an annual accounting with the Commissioner of Accounts.
How long does a conservatorship or guardianship last?
A guardianship or conservatorship terminates when the incapacitated adult dies. The conservator must turn over any assets to the executor or administrator of the estate of the incapacitated adult and file a final accounting with the Commissioner of Accounts.
Alternatively, if the incapacitated adult’s condition changes, the conservatorship or guardianship can be modified or terminated.
What are the duties of a guardian?
A guardian must do the following:
- Encourage the incapacitated person to participate in decisions.
- File an annual report with the Department of Social Services regarding the living arrangements, the medical condition of the incapacitated person, and the recommendations of the guardian.
- Visit the incapacitated person as often as needed to determine their needs, capabilities, and limitations.
Does the conservator need to pay out of pocket for costs associated with the incapacitated person’s care?
No. A conservator is not required to pay for the costs of the incapacitated adult. However, they can enter into a contractual obligation to assume financial responsibility for the incapacitated adult if they so choose.