When people hear the word “guardian,” they often think of an adult authorized to make decisions on behalf of a child. It is important to know, however, that guardianships are not limited to children. In fact, Virginia courts appoint guardians and conservators for incapacitated adults in a variety of circumstances. This first in a series of blog posts discussing adult guardianships and conservatorships in Virginia will provide a brief introduction to the process of becoming a guardian or conservator of an incapacitated adult.
A guardian or conservator is appointed when a court determines that an incapacitated adult is unable to manage his or her own personal or financial affairs.
A “guardian” is responsible for the personal affairs of an incapacitated person, including responsibility for making decisions regarding the person’s support, care, health, safety, habilitation, education, and in many cases, their residence.
A “conservator” is a person appointed by the court who is responsible for managing the estate and financial affairs of an incapacitated person.
In Virginia, an “incapacitated person” means an adult who has been found by the court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator.
A person seeking to become a guardian or conservator for an incapacitated adult must file a petition with the Circuit Court and must meet a number of statutory notice and pleading requirements as set forth in the Code of Virginia. For purposes of the petition, the incapacitated adult is referred to as the respondent. Any person may file a petition for the appointment of a guardian, conservator, or both, and the person filing a petition (referred to as the petitioner) does not necessarily have to be the person who will be appointed guardian or conservator for the respondent.
Once a petition is filed, the court will appoint a Guardian ad litem, who is an attorney at law, licensed to practice law in Virginia, and is appointed by the Circuit Court to represent the interests of the incapacitated person during the guardianship and/or conservatorship proceeding. The Guardian ad litem has several duties, including meeting with and evaluating the condition of the respondent, and providing a detailed report and recommendation to the court.
The purpose of a guardianship/conservatorship proceeding is to ensure that the best interests of the incapacitated person are represented and safeguarded. To grant a guardianship and/or conservatorship, the petitioner must prove, and the court must determine, that the respondent is legally incapacitated, and that the proposed guardian or conservator is the appropriate and qualified choice under the law. This will require the petitioner to appear at a hearing and present evidence. It is important to note that the respondent is entitled to counsel and may object to the appointment of a guardian or conservator and request that the case be tried by a jury. Similarly, a third party may object and contest the petition. If the matter is contested, petitioners can find themselves in the midst of protracted litigation, where the final hearing resembles a full trial at which evidence is presented, testimony is heard, and witnesses are cross-examined.
No matter who a Petitioner requests, it is necessary to consider the incapacitated person’s best interests when seeking appointment of a particular guardian or conservator. In each case, the Court appointed Guardian ad litem will investigate the Petitioner’s proposed choice of guardian/conservator and will provide a report to the Court which will analyze, among other things, the propriety and suitability of the person requested in the petition. The Guardian ad litem, and ultimately the Court, will consider the following factors in determining the appropriateness of a proposed guardian/conservator:
Becoming someone’s guardian or conservator is a great responsibility, and can be an arduous and emotionally difficult process. Before you petition a court to take on this important role, you should consult with a litigation attorney experienced in guardianships and conservatorships who can ensure you meet your statutory responsibilities and will competently guide you through the trial process.