Guardianship And Conservatorship In Special Needs Planning

If you have someone over 18 in your family who cannot take care of themselves, you have no doubt wondered what will happen when you can no longer care for them. That is where guardianship and conservatorship come in. The process of appointing a guardian and/or conservator is handled through the courts, and it can get a bit complicated. If you live in Virginia, the assistance of an experienced, knowledgeable estate planning attorney can be invaluable in ensuring that your loved one gets the care they need.

Definition of Terms

In this blog, we will use some terms that you might not have heard before. So, let’s take care of that first.

  • Petitioner: The person who is asking the court to appoint a guardian and/or conservator. This can be someone other than the potential guardian or conservator.
  • Respondent: The person for whom guardianship is being sought; these terms are somewhat interchangeable.
  • Guardian: The person who has the responsibility to make decisions about the ward’s daily life, medical care, and housing.
  • Conservator: The person who has the responsibility for the ward’s money and other tangible assets.
  • Guardian Ad Litem (GAL): An attorney appointed by the court who assesses the ward to determine:
  • if the ward does indeed need a guardian and files a report with the court regarding the care;
  • what duties and powers the guardian should have, and 
  • who should be appointed the guardian and/or the conservator.

The Process 

In this section, we will give you a brief rundown of the steps you must take to have a guardian and/or conservator appointed. While reading these, remember that each jurisdiction will have its own rules and time frames in which documents must be filed and deadlines met. They will also have their own filing fees. Be sure to consult an attorney who is knowledgeable about the area where the ward lives.

1. File a petition to appoint a guardian and/or conservator

In Virginia, you will file this petition in the Circuit Court for the county where the ward lives. There might be a form to fill out with questions to answer, but if not, the petition should include a description of the ward’s disabilities or why you believe the ward needs to have a guardian and/or conservator appointed; a list of all the ward’s assets and property; and any less restrictive alternatives to guardianship that have been considered and tried.

2. A hearing will be scheduled

The judge will hear evidence as to why a guardian and/or conservator is needed.

The ward and all members of their family must be given a copy of the petition and notice of hearing. They have a right to be at the hearing and to have an attorney represent them.

3. A Guardian Ad Litem will be appointed.

At the hearing, the judge will appoint a Guardian Ad Litem (GAL), who is an attorney. This GAL will represent the interests of the ward, but not the ward themselves. The GAL will conduct an independent assessment of the ward and advise the court on whether or not a guardian and/or conservator is needed, what that person’s or persons’ duties and powers should be, and whom the guardian and/or conservator should be.

At this point, the judge can decide if there are less restrictive ways for the ward to be cared for. For example, the ward might function quite well except for managing their finances. In that case, a conservator could be appointed to handle paying the ward’s bills, managing their bank account, and so forth. This option also includes powers of attorney and advanced directives made out prior to the ward’s incapacity.

4. Certificates of Incompetency

The court requires two certificates of incompetency from two different medical

professionals. This could be two licensed physicians who have examined the ward or one licensed physician and one licensed psychologist, licensed clinical social worker, or nurse practitioner.

5. Hearing before the judge.

If the petitioner, prospective guardian, and/or conservator are not the

same person, both must attend the hearing. The ward has the right to attend but is not required to do so. Notice must be given to all other “interested parties,” which includes the ward’s family and any agencies that provide services to the ward, such as the health care facility where the ward lives.

The judge will review all the reports the court has received and allow anyone present to explain why the ward should or should not have a guardian and/or conservator. If there are no objections, the judge will appoint the guardian and/or conservator.

The guardianship and/or conservatorship ends when the ward dies, but it can be terminated if the ward’s condition improves to the point where they can once again manage their affairs.

Let Us Help You Through This Difficult Process

Making decisions for someone who cannot do so themselves can be physically and emotionally draining. Add in all the steps that the court requires to appoint a guardian or conservator and it can be overwhelming. At Jennifer Porter Law, PLLC, we have the experience and knowledge to help you through each step, keeping in mind the best interests of the person you are trying to help. Contact us today at (571) 532-9070 or online to set up a consultation.