When You Need a Guardian & Conservatorship
Posted by: Copenhaver, Ellet & Derrico
When an adult can no longer take care of their own affairs, family members and loved ones should step in to help. In Virginia, guardian and conservatorships allow appointed individuals to oversee the care of an incapacitated adult. However, there are key differences between guardianships and conservatorships depending on the circumstances, as well as strict requirements outlining when a court will appoint a guardian or conservator.
Do You Need to Be a Guardian?
Before, we discuss guardian and conservatorship, if a persons has a proper Power of Attorney allowing an agent to act for them, there may not be a need to go through the considerable time and expense of having a court appoint you as a guardian and conservator. While competent, a person can avoid court proceedings by having a power of attorney that names an agent. This document avoids additional court proceedings, which often happen at the worst possible time in a personâ€™s life, such as if they unexpectedly become mentally or physically disabled.
The Role of a Guardian
When an individual needs a guardian, they need assistance meeting their health, safety, residential, and educational needs. This role is a fairly demanding, as the appointed guardian has to meet the standards laid out in the court order and meet mandatory reporting requirements.
The Role of a Conservator
Conservators make financial decisions on behalf of the incapacitated individual. They have a fiduciary duty to the incapacitated individual. As such, they are expected to act in the best interests of the individualâ€™s estate and assets.
When A Guardian or Conservator is Necessary
Obviously, appointing a guardian or conservator is a major step that takes away an individualâ€™s independence and ability to make decisions for themselves. For the court to make that decision, the individual requesting the guardianship or conservatorship must prove that the individual truly cannot safely make their own choices.
The court may consider evidence of:
- Signs of memory loss or changes in mental functioning
- Failure to meet their own personal care needs, including showering, toileting, eating, staying hydrated, or getting dressed
- An inability to manage their own finances; note that this does not include poor judgment, which on its own is not enough to prove that someone is incapacitated
- Vulnerability to exploitation
- An inability to provide for their own safety without assistance or protection
The court is generally not quick to award a conservatorship or guardianship. They must verify that there are no other less-restrictive solutions that would still meet the needs of the individual. For example, they may consider power of attorney, revocable trusts, or protective payee status before going straight to a conservatorship.
Situations Requiring a Guardian, Conservator, or Both
It is important to consult an attorney when pursuing a guardianship or conservatorship. They can help you determine whether or not a guardianship or conservatorship is the right choice and possibly present other options.
Consider these examples, which may call for a guardian or conservator:
- An individual with a traumatic brain injury impacting their ability to do math or engage in long-term planning; while a guardianship may not be necessary in this case, a conservator may be required to help the individual meet their financial obligations and use their money properly
- An individual who loses the ability to communicate or physically care for themselves after a stroke; a guardianship may be needed to help them meet their personal care needs, and a conservatorship may be necessary if they have assets that need to be managed
Types of Guardian and Conservatorships
Again, the court will try to meet the incapacitated individualâ€™s needs in the least restrictive way possible. This may involve considering less restrictive types of guardianships and conservatorships before agreeing to a full guardianship or conservatorship. A limited guardianship or conservatorship only allows the named guardian or conservator to manage certain tasks.
Appointing a Guardian or Conservator
Depending on the needs of an individual, their loved ones may choose to petition the court for a guardianship, conservatorship, or both. One individual may take on both roles, or the court may appoint each role to different people. Generally, the court will appoint a family member or close friend who can be trusted with the incapacitated individualâ€™s affairs.
Discuss Your Situation with an Experienced Lawyer
Perhaps you need to pursue a guardianship or conservatorship for a loved one who is no longer able to care for themselves, or maybe you want to make sure your estate plan covers your needs should you become incapacitated. Either way, Copenhaver, Ellett & Derrico is here to help. With decades of experience assisting people across Virginia to address their estate planning needs, we know what youâ€™re dealing with and how to find a solution that works for you.