Guardianship and Conservatorship

It often occurs that an individual for a variety of possible reasons lacks the physical and or cognitive capacity to do everyday tasks.

Some examples include elderly individuals suffering from dementia, other individuals suffering with mental illness, individuals who have suffered an injury or those individuals with cognitive incapacity need assistance.

Where the individual has previously signed a General Durable Power of Attorney and or a Health Care Power of Attorney, there will be an individual who can act on the family members behalf.

However, for these documents to be valid, the documents would have to have been executed by an incapacitated person at a time when he/she understood what the documents meant. This ability to understand the documents is called legal capacity.

In some cases, the Power of Attorney and or the Health Care Power may be insufficient to address all the needs of the incapacitated family member. 

In Virginia, the procedure for obtaining the legal authority to make decisions for the incapacitated person is referred to as Guardianship or as Conservatorship.

When a person has been named Guardian for another, he/she has the responsibility/authority for the health, safety, and welfare of the incapacitated person. When a person has been named Conservator, he/she has the authority to make financial decisions for the incapacitated person and manage his or her resources and property. In many cases, the same individual holds both the Guardianship and the Conservatorship.

Guardianship. In order to be appointed Guardian, a person must file a petition with the Circuit Court in the jurisdiction where the incapacitated person resides. A judge decides based on evidence whether the person alleged to be incapacitated, is in fact, incapacitated as defined by Virginia law. The Judge decides how broad the Guardian’s authority will be, based upon the specific capacity of the incapacitated person

Conservatorship. As in the Guardianship situation, a petition to obtain a Conservatorship must be filed in the Circuit Court where the person alleged to be incapacitated lives.  In this case, the Judge determines the cognitive capacity or incapacity of the person alleged to be incapacitated to make financial decisions and to manage their financial affairs.  If the Judge determines that the person is not able to manage his/her financial affairs a Conservator is appointed and given the authority to make financial decisions for the incapacitated person and take control of their financial affairs. This authority may include the duty to pay bills, invest money, sell property, or generally manage financial resources for the benefit of the incapacitated person. The Conservator is required to keep detailed records of all income received and funds expended. The records are reviewed by a Court official on a regular basis.