Making decisions for oneself is a hallmark of adulthood. Unfortunately, intellectual disabilities or severely disabling health conditions such as dementia, stroke, or traumatic brain injury leave some adults unable to make decisions that are necessary to keep themselves safe or meet their most basic needs. Watching a beloved family member or close friend struggle in this way can be agonizing. At Cucinelli Geiger, PC, we understand, and we are here to help.
Helping Virginia Families Navigate Complex Legal Processes
Our exceptional Virginia legal team has assisted countless clients file for guardianships or conservatorships for individuals who are incapacitated and incapable of directing their own affairs. Here's what you should know about guardianship or conservatorship cases in Virginia, including how working with our attorneys can take a weight off your shoulders and help make complicated legal processes go more smoothly.
Guardianship and Conservatorship Basics
In managing the affairs of an incapacitated person, guardians and conservators serve similar yet distinct roles. The primary difference between guardians and conservators is that guardians are responsible for managing an incapacitated individual's personal affairs, while conservators are tasked with making decisions about the person's property and finances. More specifically:
- Guardians. A guardian is someone the court appoints to direct an incapacitated individual's personal affairs. This gives the guardian the legal authority to make decisions about the person's support, safety, health, treatment, education, and living arrangements.
- Conservators. A conservator is an individual the court appoints to manage the estate and finances of an incapacitated person. This provides the conservator with the legal authority to pay the bills and make other financial decisions on behalf of the conservatee.
Depending on the limitations of the individual in question, the court may appoint a guardian, a conservator, or both. The court can appoint separate people or one single person to serve as guardian or conservator. In some cases, the court may decide to appoint co-guardians and/or co-conservators. Our team of attorneys can help you determine—and fight for—the option that's best for your loved one.
Understanding Incapacity
Before the court appoints a guardian or conservator, you have to demonstrate that your friend or family member is truly unable to direct or manage their own affairs and in need of the extreme level of restriction and supervision that a guardianship or conservatorship provides. Showing that your loved one exercises poor judgment does not provide sufficient evidence of incapacitation on its own.
For the court to deem someone incapacitated, they must find that the adult is incapable of effectively receiving and evaluating information or responding to people, events, or environments to the extent that the individual lacks the capacity to:
- Meet the essential requirements for health, care, safety, or therapeutic needs, or;
- Manage property or financial affairs or provide for the support of legal dependents
Alternatives to Guardianship and Conservatorship
While guardianship and conservatorship can help protect incapacitated adults from exploitation and other types of potential harm, they aren't appropriate in every case, as the process involves taking away your loved one's basic rights. Under guardianship or conservatorship, they may not be able to vote, make their own medical decisions, get married, or sign legal documents. Consider these alternatives.
- Advance medical directive. Allows individuals to name someone to make medical decisions on their behalf if they're unable to do so and to state their wishes if they are found to be terminally ill.
- Durable power of attorney. Allows individuals to choose someone to make decisions about their money and property if they're unable to.
- Representative payee. The Social Security Administration (SSA) can name someone to manage a recipient's benefits on their behalf.
- Limited guardianship/conservatorship. When an individual needs help making some decisions but isn't fully incapacitated, the court may approve a limited guardianship or conservatorship that specifically designates the types of decisions each party can make.
- Supportive decision-making. Allows individuals to identify a person or team to support them by creating a written plan.
Request an Initial Consultation
Deciding whether to seek guardianship or conservatorship for a loved one can be difficult, and the process itself can be costly, time-consuming, and emotionally challenging. At Cucinelli Geiger, PC, our conscientious and capable attorneys are here to make the process as easy as possible. Contact us today to request an initial consultation.