Guardianship & Conservatorship for Incapacitated Adults

There are two primary types of guardians in Virginia — guardians for children and guardians for incapacitated adults. This discussion will address guardians and conservators for incapacitated adults, which includes (1) adults of any age with developmental disabilities and (2) adults with cognitive and/or physical impairment due to age or illness.

Incapacitated Person

An adult who has been found by a 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 or her support or for the support of his legal dependents without the assistance or protection of a conservator.

A finding that the individual displays poor judgment, alone, shall not be considered sufficient evidence that the individual is an incapacitated person within the meaning of this definition.

Guardian

A person appointed by the court who 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, therapeutic treatment, and residence.

A guardianship in Virginia may be a total guardianship, a limited guardianship (when decisions are needed only for specific matters), or a temporary guardianship.

Conservator

A person appointed by the court who is responsible for managing the estate and financial affairs of an incapacitated person.  A conservatorship in Virginia may be a total conservatorship, a limited conservatorship (when financial assistance is needed only for specific matters), or a temporary conservatorship.

Only a judge can decide if a person is incapacitated and appoint a guardian and/or conservator for that person.  Once a judge decides that a person needs to have a guardian and/or conservator appointed, the judge has great flexibility in determining what type of guardian and/or conservator to appoint.  A guardian and/or conservator can be totally in charge of a person’s affairs, or the guardian’s and/or conservator’s authority can be limited to making specific decisions.

When You Might Need A Guardian

Guardianship is an extreme form of intervention in another person’s life because control over personal and/or financial decisions is transferred to someone else for an indefinite, often permanent period of time.  Once established, it can be difficult to revoke.  Therefore, guardianship should only be used as a last resort.

There are times when a person might need a guardian, but can be served in a less restrictive way.  Here are some alternatives to guardianship:

  • A Durable General Power of Attorney authorizes your agent, called “Attorney-in-Fact,” to act on your behalf and sign your name to financial and/or legal documents.  The Financial Power of Attorney is an essential tool in the event that, due to age, illness, or injury, you are unable to carry on your legal and financial affairs.  Having a Financial Power of Attorney will generally avoid the need to go through the time-consuming, expensive, and publicly embarrassing process whereby someone has to go to court to have you declared mentally or physically incompetent and then one or more persons need to be appointed to serve as your legal guardian and/or conservator, which process is subject to ongoing court supervision.
  • A Health Care Power of Attorney (also called a Medical Power of Attorney or an Advance Medical Directive) authorizes another person (called your “Medical Agent”), to make decisions with respect to your medical care in the event that you are physically or mentally unable to do so, as certified by two physicians.  This document includes the type of provisions that used to be in what was commonly called a “Living Will,” allowing you to indicate your wishes concerning the use of artificial or extraordinary measures to prolong your life artificially in the event of a terminal illness or injury.  You will also use this document to indicate your wishes with regard to organ donation, disposition of bodily remains, and funeral arrangements.
  • A Living Trust is a legal entity which is capable of owning financial assets, real estate, and/or other property. A living trust is a trust that comes into existence during your lifetime. The main feature of a living trust is that the trustee is not accountable to the court, and therefore not subject to probate. A Conservator, on the other hand, is accountable to the court and subject to ongoing probate for the life of the Ward. Most people therefore use a living trust as their primary estate planning tool in order to make things easier for their trusted loved ones by avoiding the time and complications of probate.