Monday, February 15, 2016

Who needs a guardian and conservator?

Many people, at some point in their life, will need help from someone else in their day-to-day responsibilities, health decisions and finances.  For most people, this happens when they become legally "incapacitated", meaning they are no longer able to make those decisions for themselves.  We see this with our parents and grandparents when they get dementia or Alzheimer, we see it with our children who turn 18, legally independent, but have things that prevent them from functioning independently, i.e. autism, brain tumor, etc.

For the former, our parents and grandparents, they could prevent needing a guardian and conservator by executing an advanced medical direction and power of attorney prior to their incapacitation.  Those documents put in writing their wishes for who how decisions will be made and who will make those decisions on their behalf.  However, for our children who are incapacitated prior to turning 18 and individuals who did not execute a power of attorney or advanced medical directive, we use a guardianship and conservatorship to ensure their rights are protected.

While they are typically done together, a guardian and conservator are two separate legal identities and can, in fact, be two different people.  Let's start with a guardian.  A guardian, is appointed by the court through a Petition for Guardianship, to take care of an individual on a day-to-day basis, make health decisions, etc.  This person typically will report to the Department of Social Services, who oversees the guardianship and ensures the guardian is fulfilling his duties and responsibilities to the incapacitated individual.  A conservator is the financial counterpart to the guardian.  A conservator, appointed by the court through a Petition for Conservatorship, handles the incapacitated individual's finances.  This person reports to an individual or agency; in Virginia it is the Commissioner of Accounts in the County where the incapacitated individual resides.  This person will report all money coming in for the incapacitated individual and spell out how that money gets spent, invested, etc.  The Commissioner of Accounts ensures that the conservator is appropriately handling the incapacitated individuals finances and not abusing their power.  The guardian and conservator must report to the Department of Social Services and Commissioner of Accounts at least annually throughout the duration of their appointment as guardian and conservator (in most cases this is until the incapacitated individual passes away or a new guardian or conservator is needed).

To actually get a guardian and conservator appointed, the court will appoint a guardian ad litem to investigate the circumstances, ensure the incapacitated individual is represented and protected and make recommendations to the court on whether a guardian and conservator are necessary as well as who the court should appoint to act in those roles.  During a hearing in court, the court will make those determinations and if appropriate, issue an order appointing someone as guardian and conservator.

So, if you have a family member or close friend who you think may be incapacitated, in need of legal assistance and without a valid power of attorney or advanced medical directive, you may need to begin the process of petitioning the court to appoint a guardian and conservator.