By Vanessa Macias Stillman

In my last blog post, I outlined a brief introduction to the process of seeking a guardian and conservator for an incapacitated adult. In Virginia, any person may file a petition for the appointment of a guardian, conservator, or both, and the person filing a petition (the Petitioner) does not necessarily have to be the person who will be appointed guardian or conservator for the incapacitated adult. Many Petitioners have a specific person or entity in mind when considering a guardian or conservator for their loved one, but many start by asking- who should it be?

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:

  • The person’s geographic location
  • Any familial or other relationship with the incapacitated person
  • The person’s ability to carry out the powers and duties of guardian and conservator
  • The person’s commitment to promoting the incapacitated person’s welfare
  • Any potential conflicts of interest
  • The wishes of the incapacitated person and any recommendations of relatives

Oftentimes, the best choice of guardian and conservator for an incapacitated loved one is clear. However, based on any number of factors unique to your situation, you may find yourself asking- who should it be? Whether the answer is clear to you or not, if you believe your loved one is in need of a guardian and/or conservator, it is important to consult with an attorney about your options.