ADULT GUARDIANSHIPS AND CONSERVATORSHIPS

At Susan I. Jean & Associates, LLC, we assist clients who have concerns about whether their loved one is able to make rational, safe decisions. There are many situations in which a Guardianship or Conservatorship may be necessary. Guardianships and Conservatorships are legal relationships by which the Court appoints an individual to make decisions on behalf of someone who is legally incapacitated. A Guardian is appointed to make personal decisions and a Conservator is appointed to make financial decisions on behalf of an incapacitated person.

Who may be legally incapacitated? Usually, this is a:

• Child with a disability who is about to turn 18 or a disabled child already over age 18: As soon as a disabled child turns 18, he or she is an adult and has the right to make his or her own medical decisions, financial decisions, educational decisions, residential decisions, etc. You know your disabled child is not able to make these decisions, but the law gives your child these rights anyway. Someone must be named to make both personal and financial decisions to the extent your child cannot. The following are some of the most common questions I hear from the parents of disabled children:
• What will happen when my child turns 18?
• Now that my child is 18, why won’t her Doctor talk to me anymore?
• What will happen when I can’t take care of my child anymore?
• Who will look out for my child if I am unable?
• Where will my child live if something happens to me?
• What will happen to my child when I pass away?
• Adult: an adult can lose his or her ability to make rational, safe decisions for a number of reasons. Dementia, stroke, and accident, are all examples of reasons why an adult may not be able to make rational medical, residential, financial, or other decisions for himself or herself.

How would I go about being appointed as a Guardian and Conservator?

• First, we hope you will make an appointment to meet with one of our attorneys.
• During your appointment, the attorney will gather the information needed to file the Petition. The Petition goes on for several pages, but basically lays out certain personal information, family relations, identifies the nature of the incapacity, and requests that the Court appoint someone as Guardian and/or Conservator.
• Next, the Court will appoint a Guardian ad litem.
• The Guardian ad litem will investigate the facts, and file a report with the Court.
• The Court will have a hearing. The incapacitated person has the right to attend the hearing, but does not have to attend. Family members have a right to attend, but do not have to attend. Our client normally must attend, as normally must the proposed Guardian or Conservator.
• After the hearing, assuming the Court agrees that you should be named as Guardian and/or Conservator, we will schedule an appointment for you to meet with the deputy Clerk of Court to qualify as Guardian and/or Conservator, as well as coordinating with a surety company if you are required to have a surety bond.

The questions listed below are common questions we hear. Hopefully, they will help you understand the process.

What is the purpose of a Guardianship and Conservatorship?
• The purpose of a Guardianship and Conservatorship is to ensure that the best interests of an incapacitated person are represented.

When is the appointment of a Guardian and/or Conservator appropriate?
The appointment of a Guardian and/or Conservator may be appropriate for:
1. an incapacitated person;
2. a disabled child who is 18 years of age or older;
3. an adult who is exhibiting signs of dementia, disorientation, or who is suffering from a brain injury, where these are significant enough to affect the health and safety of the adult.

What is an 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:
1. meet the essential requirements for his or her health, care, safety, or therapeutic needs without the assistance or protection of a Guardian; or
2. manage property or financial affairs for his or her support or for the support of his or her legal dependents without the assistance or protection of a Conservator.
3. Making bad choices, or choices that the family does not agree with, is not incapacity.

What is a Guardian?
• A person appointed by the Court who is responsible for the personal affairs of an incapacitated person, including the responsibility for making decisions regarding the person’s support, care, health, safety, habitation, education and therapeutic treatment.
• A limited Guardianship means a person appointed by the Court has only those responsibilities for the personal affairs of an incapacitated person as specified in the order of appointment.
• A Guardian must have enough contact with the incapacitated person to know his or her capabilities, limitations, needs, and opportunities.

What is a Conservator?
• A person appointed by the Court who is responsible for managing the financial affairs of an incapacitated person. For a full Conservatorship, the Conservator collects the income, pays the debts and manages the assets.
• A limited Conservatorship means a person appointed by the Court has only those responsibilities for managing the estate and financial affairs of an incapacitated person as specified in the order of appointment.
• Since a Conservator is handling the funds and assets of the incapacitated person, he or she usually must be eligible for a bond with surety. This means that a prospective Conservator must have sufficient personal assets, good credit and no past bankruptcy or felony conviction, so that he or she is bondable.

What is a Guardian ad litem (GAL)?
• A qualified attorney licensed to practice law in Virginia and appointed by the Court to represent the interests of the incapacitated person during the Guardianship/Conservatorship proceedings. The GAL is responsible for reporting to the Court the facts of the matter and then makes recommendations to the Court. The GAL’s fee is fixed by the Court at the hearing. The GAL is not the incapacitated person’s attorney.

What is a standby Guardian and standby Conservator?
• A person appointed by the Court who is empowered to assume the duties of Guardian or Conservator immediately upon the death or incapacity of the previously appointed Guardian or Conservator. The person named as a prospective standby Guardian or Conservator must normally attend the Court hearing.

Who normally serves as Guardian and Conservator?
• Usually, the parents of a disabled child or a child of a disabled adult serve as Guardian and Conservator, but a sibling, family member, friend, attorney or organization such as Jewish Family Service of Tidewater, Inc. or Catholic Charities of Eastern Virginia, Inc. may serve as well. If specifically requested, and if there is a good reason, our firm will on occasion act as well. But only if specifically requested, and only in certain circumstances.

Can I name the Guardian and Conservator?
• You can certainly name the person(s) whom you want to serve as Guardian and Conservator, but the Judge has the final decision.

What reports are required by the Guardian?
• The Guardian must file an initial report with the Department of Social Services (DSS) within six (6) months of qualification. DSS reviews the report and forwards it to the Court. Thereafter, the reports are due annually.

What reports are required by the Conservator?
• The Conservator must file an inventory and accountings with a Commissioner of Accounts who is assigned by the Clerk of Court. The inventory lists the assets and assigns a value to those assets for which the Conservator is responsible and is due within 4 months of qualification. The accountings show all financial activity. The first accounting is due within 6 months of qualification and annually thereafter.
• The Conservator is responsible for filing all tax returns.
• At Susan I. Jean & Associates, LLC we can also assist you with Conservatorship Administration. See the tab titled Conservatorship Administration for more information.