Guardianships and conservatorships are crucial legal mechanisms designed to protect individuals unable to make decisions for themselves, ensuring their health, safety, and well-being are paramount. Guardians and conservators are expected to act in the best interest of the ward, respecting the ward’s wishes and preferences to the extent possible, and they are typically subject to oversight by the appointing court. The scope of a guardian’s decision-making authority is defined by the court order, and it may be limited to specific areas or may be broad, encompassing all areas of the ward’s life, depending on the ward’s needs and capabilities. A Virginia Beach Guardianship lawyer can help a family understand this estate planning process and their options to protect a loved one.
What is a Guardianship?
Guardianship is a legal arrangement where a court appoints an individual or entity (the guardian) to make personal decisions for another person (the ward) who is unable to make decisions due to incapacity or minority. Such decisions often include:
- Medical Care: Deciding on medical treatments, health care providers, and medical interventions.
- Living Arrangements: Determining where the ward will live, which may include selecting an appropriate residential facility or other housing arrangements.
- Personal Care: Managing day-to-day care, including diet, clothing, and personal hygiene.
- Education and Training: Making decisions regarding the ward’s education or vocational training.
A guardian must maintain regular contact with the incapacitated person to ensure the guardian is aware of their needs and capabilities. Additionally, the guardian must file an annual report describing the incapacitated person’s current condition and capabilities. An attorney in Virginia Beach can help a guardian understand their role and what they can make decisions on.
What is a Conservatorship?
Conservatorships focus primarily on managing the financial affairs of a person who is unable to do so themselves due to incapacity. The conservator is responsible for the following:
- Asset Management: Handling, protecting, and managing the ward’s assets, investments, and property.
- Bill Payment: Paying bills, taxes, and other financial obligations on behalf of the ward.
- Budgeting: Creating and managing a budget to meet the ward’s needs.
- Income Management: Collecting the ward’s income, benefits, etc., and allocating funds appropriately.
A lawyer can help a family in Virginia Beach determine whether a conservatorship, guardianship, or both is needed in their situation.
What is the Process for Appointment?
A guardianship or conservatorship requires a court to find that an individual is incapacitated. State law defines an incapacitated person as an adult whom a court has determined cannot meet their own essential needs or adequately manage their own financial affairs. A lack of good judgment by itself, however, is not enough to be considered an incapacitated.
An interested party, such as a family member, files a petition with the local court in an appropriate jurisdiction. The petition will include the personal information about the petitioner and the proposed ward. It will also include a detailed statement explaining why the proposed ward is believed to be incapacitated and unable to manage their affairs. A medical evaluation will usually be filed with the petition as evidence of the individual’s mental and physical capacity. A Virginia Beach attorney could ensure a guardianship petition includes all necessary information.
The court will appoint a Guardian ad Litem, an attorney to represent the best interests of the proposed ward. The Guardian ad Litem will investigate and submit a report to the court detailing their findings and recommendations regarding the petition.
A hearing will be set by counsel, and notice must be sent to the proposed ward and other relatives identified by law. The court will hold a hearing where evidence will be presented. If the court determines that the proposed ward is incapacitated, it will consider whether to appoint a guardian or conservator and what powers to grant them. To make this determination, the court will consider factors such as limitations, the availability of less restrictive alternatives, and the individual’s best interests.
Guardians and conservators are typically required to submit periodic reports to the court, detailing the individual’s condition and the actions taken on their behalf. Periodic review hearings may also be set by the court.
Modifications and Termination
Guardianships and conservatorship can be modified or terminated if the individual’s condition changes or if the guardian is not acting in the best interest of the incapacitated person.
Alternatives to Guardianship
Guardianship is a restrictive option. Since it takes a significant investment of resources on the part of the guardian, the incapacitated person, and the court system, guardianship may not be the best solution in all circumstances.
Engaging in estate planning before a loved one becomes incapacitated can lower the likelihood of a need for guardianship. For example, a person could sign a durable power of attorney that provides directions on how to manage their affairs in the event they become incapacitated. A guardianship lawyer working in Virginia Beach can help someone explore the benefits and drawbacks of different approaches and assist in implementing the appropriate measures.
Call a Virginia Beach Guardianship Attorney for Help
If you believe a loved one may need a guardian or conservator, or if you have questions about the process, you should reach out to a Virginia Beach guardianship lawyer. Even if incapacity is not yet an issue, an attorney may be able to discuss planning options that may eliminate the need for a guardianship in the future.
