Under the Virginia Code, there are two types of appointments the Circuit Court may make when a person is declared incapacitated: Guardianship and/or Conservatorship. A person may be declared incompetent and a guardian/conservator appointed in the same proceeding. Before a guardian or conservator may be appointed, the person must first be declared incapacitated. In order to show incapacity, the court must find that the person is incapable of making decisions on their own related to their daily care or finances. Typically, this requires detailed evidence of specific disabilities the person is facing. Sworn statements from family, friends and treating physicians play a crucial role in the court's investigation. Merely showing a pattern of poor decisions or strange behavior is insufficient. The court does not take the decision lightly, nor should they.
In Virginia, a guardian is responsible for making personal and health care decisions for the incapacitated person. The authority of the guardian may be extremely broad or limited to specific areas. In some instances, the incapacitated person only needs assistance with one aspect of their life. In others, the incapacitated person is not capable of making any serious decisions without assistance.
In Virginia, a conservator is responsible for managing the financial and property affairs of the incapacitated person. Similar to a guardianship, the authority of the conservator may be broad or limited to specific areas by the Circuit Court. The Court must be satisfied that the proposed conservator is financially responsible. Often, the Court will require surety of the conservator.
How do I start the process?
Should you wish to seek representation from our office regarding conservatorship or guardianship, we will need contact information for close family and treating physicians of the incapacitated person. Detailed information regarding the disabilities and medical diagnosis of the incapacitated person expedites the process. Should you have difficulty obtaining this information, do not despair. We will be happy to help obtain the necessary documentation.
My own family has struggled with the frustration and difficulty of seeking to have a loved-one declared incapacitated. The choice to seek appointment as a guardian or conservator is often not an easy decision. I am fully aware that the process is emotionally-daunting for most. I promise to use the same discretion and care with which I would give my own family. My objective is to ensure that the incapacitated person and the family/friends seeking appointment are treated with the dignity and respect which they deserve.
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