GUARDIANSHIPS & CONSERVATORSHIPS
An incompetent or incapacitated person in Virginia is a person who has been legally adjudged to (1) be unable to care for his or her own health, care, safety, and physical needs; and/or (2) manage his or her own financial or legal affairs.
Providing for the care and well being of an incapacitated individual more often than not requires a two pronged legal proceeding in Virginia. In order to have legal recognition as the physical caretaker of an incompetent individual, the courts require that one be appointed as guardian for the person under the disability. In order to have legal access and control of the assets of an incompetent individual, a court order designating one as the conservator of the incompetent person’s financial assets is required.
The legal proceedings leading to an appointment of a guardian and/or conservator require that notice of the proceeding be given to certain family members, that a guardian ad litem be appointed by the court to represent the best interest of the individual who is the subject of the proceeding, and that medical evidence from a health care professional be presented. An individual who is the subject of the proceeding is entitled to separate legal counsel, a jury trial if so desired, and the right to present their own evidence and cross-examine call witnesses.
There are alternatives to the legal appointment of a guardian and/or conservator; however, these alternatives require affirmative action prior to one becoming incapacitated. An advance medical directive and a durable power of attorney duly executed while one has capacity can allow for the health, care, and well being of an incapacitated individual and the orderly administration of the incapacitated individual’s assets and income through the acts of an agent named in such documents. It is only when proper estate planning documents have not been timely executed that guardianship and conservatorship proceedings become necessary.