Our estate plans at Smith Strong, PLC are designed to avoid the need for guardians and conservators, however, some individuals simply unable to plan in time, thus making guardianship and conservatorship hearing required. Let’s learn more.
Guardianship & Conservatorship—Defined
Guardianship or Conservatorship are established when a Virginia Circuit Court determines a person is unable to manage their financial affairs (Conservatorship, in other words conserving the money for their benefit) or health and wellbeing (Guardianship, or guarding over them as if they were your child).
A person must be declared incapacitated to have a guardian or conservator placed over them—and the same person may fill both of these positions.
Process for Appointment
Meet with an attorney, such as our firm, Smith Strong, PLC, to understand the process and pitfalls of the position, understand what you are getting into before you get into it! You may call attorney Van Smith’s assistant to schedule that meeting by calling 804.325.1245 or 757.941.4298.
Next, file a petition with the Virginia Circuit Court, citing the incapacity of the individual and need for a guardian or conservator.
Attend the hearing on determining incapacity, and subsequent appointment of the guardian or conservator. Cases to establish guardianship and conservatorship must be carefully laid out for the courts, typically including a medical expert to establish incapacity.
The proper Virginia Circuit Court may be where the incapacitated individual last lived independently or the city/county where their nursing home/assisted living facility is located.
Verifying the Incapacity of the Incapacity of the Individual & Safeguarding their Lives
The individual requiring assistance must be served a copy of the court papers, the “Petition.”
This allegedly incapacitated individual has the right to attend the hearing, and has the right to hire an attorney.
The immediate relatives of the incapacitated person—their spouse, children, or adult siblings [at least 3 adult individuals related to this person] for instance—must also receive a copy of the petition by mail.
The court will appoint a Guardian ad litem attorney to review the need for a guardian/conservator over the individual, and report to the court on their recommendation after meeting with the alleged incapacitated individual.
A licensed physician, psychologist or other professional must file a medical report.
Thus with these items in place, the court will consider:
- The limitations of the respondent,
- The development of the respondent's maximum self-reliance and independence,
- The availability of less restrictive alternatives including advance directives and durable powers of attorney,
- The extent to which it is necessary to protect the respondent from neglect, exploitation, or abuse,
- The actions needed to be taken by the guardian or conservator,
- The suitability of the proposed guardian or conservator.
The Standard for Appointing a Guardian or Conservator
The court must find the individual incapable of making informed decisions about their own health, wellbeing, or financial affairs.
Concerned about the Costs and Fees to File for Guardianship and Conservatorship
Did you know that the court will allow the estate of the incapacitated person to pay for your legal fees to bring the case to court with an attorney? They typically do--so long as those fees are reasonable. Successful actions where the estate has the means to reimburse the petitioner are often granted--by law.
Further, even if you are not successful (meaning unable to prove by clear and convincing evidence that the person is truly incapacitated) but there was a legitimate and credible reason to bring the inquiry to the court's attention--they may then still award and reimburse you for your attorney's fees and legal expenses. Hopefully this reduces the anxiety of bringing the formal action--and leads us to the more important decisions, like (1) Is it time now to get the help your loved one deserves? and (2) Who is the right person to step in and serve in these positions?
Duties of a Guardian
Visit the individual regularly, in order to know their needs.
Attempt participation in decisions by the incapacitated individual.
File annual reports with social services, including: medical condition, living arrangements, and your recommendations for continued care.
Duties of Conservator
Preserve assets and income for the individual.
File annual accountings with the Commissioner of Accounts, showing how money used on their behalf.
Alternatives to Conservatorship & Guardianship
Estate planning solutions at Smith Strong, PLC is the appropriate alternative to these time and fee intensive proceedings, by setting out your wishes in advance through financial and medical powers of attorney planning (also known as advance medical directives).
Changes in Guardianship or Conservatorship
If a guardian or conservator would like to resign, a petition for a substitute agent must be filed with the same Circuit Court in Virginia.
The Next Step
If you have a loved one in need of additional assistance, please call attorney Van Smith to schedule your guardianship or conservatorship consultation at 804.325.1245 or 757.941.4298.