1. Why are guardianships necessary?
The most important reason to have a guardianship in place is to expedite medical treatment needed by the disabled person. Doctors and hospitals may refuse to perform necessary but non-emergency procedures on disabled patients without legally authorized consent. A guardian can provide such consent in the most efficient manner.
Having a legal guardian appointed is also useful and sometimes necessary in order to provide consent or acknowledgment on behalf of the ward in situations regarding the ward’s care and well-being, such as consenting to behavior modification plans or other treatment plans, consenting to use of medications, acknowledging receipt of rules, regulations and rights, and signing various forms on behalf of the ward regarding benefits, procedures, etc. A guardianship which covers the ward’s health and personal care is known as a guardianship of the person, or just guardianship.
If the disabled person has any significant assets, a conservator will be needed to manage them unless the assets are in trust. The guardian and the conservator, if needed, can be and often are the same person.
2. Are guardianship and conservatorship both necessary?
Not always. Most developmentally disabled persons have virtually no assets or income in their own name other than Social Security or other entitlements, and perhaps minimal workshop income. The income they do receive can be arranged to be applied directly for their care. In such cases, there will rarely be the need for appointment of a conservator, which is good because a conservatorship always involves more time and expense.
A conservator must keep meticulous records and file annual accounts, and will usually incur additional attorney fees.
3. Is a guardian or conservator liable to a third person for acts of the ward solely because he or she is guardian?
No. Under Virginia law ( Virginia Code § 37.1-134.6, et seq), a guardian is not liable for acts of the ward merely because she has assumed the fiduciary role of guardian. However, a guardian or prospective guardian should be aware that the guardian is required to carry out guardianship duties in a reasonably responsible manner.
If damages result from the guardian’s gross negligence, or if the guardian fails to take steps to avoid a reasonably foreseeable harm, then the guardian may be held liable for acts of the ward.
4. Is a conservator legally obligated to pay for the costs associated with the ward’s care?
No. A conservator does not assume financial responsibility for the ward merely by becoming conservator . The costs of the ward’s care are normally obligations of the ward’s estate. However, anyone, including a guardian and/or conservator, can assume a contractual obligation to pay for the ward’s care if he chooses to do so.
A guardian and/or conservator who wishes to avoid personal financial responsibility for the ward’s care should carefully review contracts and modify them if necessary to clarify that the guardian and/or conservator is accepting no personal financial responsibility under the contract. Also, a conservator may be held personally liable for damages caused by negligently or fraudulently handling the ward’s estate. Such liability can be avoided by acting with reasonable prudence and in accordance with applicable statutes.
5. Does a guardian have the power to consent on behalf of the ward to voluntary in-patient mental health services?
No. Under Virginia law, a guardian of the person has the power to consent to medical, psychiatric, and surgical treatment on behalf of the ward, but the code specifically excludes voluntary in-patient psychiatric treatment.
Therefore, if the ward needs in-patient psychiatric care, Virginia’s procedure for involuntary commitment must be followed. This procedure is set out at Virginia Code § 37.1-67.1 & Virginia Code § 37.1-67.3.
6. Am I obligated to become the guardian of a developmentally disabled family member?
No. Virginia law allows anyone to become guardian and/or conservator of another person. However, the choice to obtain an outside guardian should not be taken lightly. While an outside guardian may be best in certain cases, it is usually beneficial for everyone involved, especially the developmentally disabled person, if a family member serves as guardian.
Before making a decision on this matter you should consult with professionals who can give you a clear picture of the benefits, the possible drawbacks, and the responsibilities of being a guardian.
7. Can a developmentally disabled person who has no guardian execute a valid living will / advance medical directive / health care power of attorney?
Under the Virginia Health Care Decisions Act (Virginia Code § 54.1-2983), any competent adult may, at any time, make a written advance directive authorizing the providing, withholding or withdrawal of life-prolonging procedures in the event such person should have a terminal condition, and may also appoint an agent to make health care decisions. Unfortunately, the act does not define the word “competent.”
However, in Virginia Code § 37.1-134.6, the guardianship/conservatorship definition statute, we do find an explanation of the term mentally incompetent –“[a] finding that a person is incapacitated shall be construed as a finding that the person is ‘mentally incompetent’as that term is used in Article II, Section 1 of the Constitution of Virginia [right to vote] and Title 24.2 [right to run for political office] unless the court order entered pursuant to this chapter specifically provides otherwise.”
We also find, in Virginia Code § 37.1-134.14, an authorization for a “limited Guardianship,” authorizing the court’s guardianship order to “specify the legal disabilities, if any, of the person in connection with the finding of incapacity, including but not limited to mental competency for purposes of Article II, Section 1 of the Constitution of Virginia or Title 24.2.”
Under this statute, the court’s order appointing a guardian and/or conservator can specify that the ward shall retain the right to make valid living will / advance medical directive / health care power of attorney. Many developmentally disabled persons do not meet this standard of competence, but some do.
8. Can a guardian execute a valid living will / advance medical directive / health care power of attorney on behalf of the ward?
A guardian has no explicit statutory authority to execute a directive on behalf of a ward. In practice, such directives are sometimes executed and accepted, but a guardian has no clear authority in this area. However, while a guardian may not be able to execute a valid advance directive on behalf a ward, a guardian does have authority to seek modification of an exisiting advance directive executed by the ward.
More importantly, under the Virginia Health Care Decisions Act, if there is no advance directive signed by the ward, the guardian does have the right to make decisions regarding the withholding or withdrawal of life-sustaining procedures on behalf of a ward when situations arise requiring such decisions.
9. Can a Guardian Provide Informed Medical Consent?
Informed consent to a particular treatment is a consent that is given with an understanding of the nature of the treatment, its probable and possible benefits and risks, its alternatives, and the probable and possible consequences of not doing the treatment.
The issue of informed consent may surface with regard to medical procedures, drugs, or any other treatment, e.g. a behavior modification plan. Under current statutes and rules, Medicaid administrators now require, with regard to residents of ICF/MR facilities, that informed consent be obtained from a person legally authorized to provide such consent, or else Medicaid funds may be withheld from the facility.
Also, health care providers usually require informed consent by a legally authorized person in order to protect themselves from liability. In the case of a ward, informed consent is obtained through the guardian.
10. If I am the guardian of my child, who will succeed me as guardian after I die?
Virginia Code § 37.1-134.17 provides that on petition of one or both parents, one or more children or the legal guardian of an incapacitated person may appoint a standby guardian of the person or a standby conservator of the property, or both, of the incapacitated person. The appointment of the standby fiduciary shall be affirmed biennially by the parent, parents, child, children, or legal guardian of the person and by the standby fiduciary prior to assuming the position as fiduciary by filing with the court an affidavit which states that the appointee remains available and capable to fulfill the required duties.
If a guardian and/or conservator does not appoint a standby substitute, then the decision as to who will be the successor guardian will be made by the court which has jurisdiction on the basis of what is in the ward’s best interest. In making this decision, the court will consider and in many cases follow your wishes concerning a successor guardian as expressed in your will. However, your wishes are not binding on the court.
11. How can I create a guardianship when the developmentally disabled person has no assets to pay for the proceeding?
When a developmentally disabled person is indigent, the County Attorney or City Attorney’s office (at the request of the local department of social services) may petition for guardianship and/or conservatorship, in which case the proceeding will be at no cost to the ward. If the County or City is for some reason unwilling to pursue the petition, then under Virginia Code § 37.1-134.13:1, in any guardianship and/or conservatorship proceeding, if the adult subject of the petition is determined to be indigent, any fees and costs of the proceeding which are fixed by the court or taxed as costs shall be borne by the state.