What You Should Know About Guardianship and Conservatorship
This brief guide provides you with important highlights about Guardianship and Conservatorship in Virginia.
IntroductionWhether through illness, injury, or other means, anyone can require a guardian or conservator to become appointed if they become incapacitated. In such cases, there is often no estate planning in place to keep family or other loved ones out of court. Where there is no estate planning or insufficient estate planning, a guardianship or conservatorship must be established via a court process in the circuit court.
Obtaining guardianship and conservatorship can be an extraordinarily challenging and expensive process. It begins with filing a petition in court for guardianship and requesting the court declare the person legally incompetent. In some cases, such a filing can result in a heated dispute between family members and/or friends who may claim they*d be better suited for the role (or in any case that the person seeking guardianship is completely unqualified). Guardianships are ripe for creating or intensifying family tensions. And the process often comes at great expense to the incapacitated person*s assets.
Of course, this assumes these matters haven*t already been decided through proper and up-to-date estate planning, including a valid durable power of attorney and a healthcare power of attorney. Sadly, many people don*t think of the costly possibility of incapacity and therefore leave their families at risk.
Who Can Be Appointed as Guardian or Conservator?Unless specified in a valid legal document, any family member or other interested person can petition for guardianship*even a close friend can do it if they prove they*re best suited for the position. That said, most courts give preference to the person*s spouse or other close family members. When a conservator is appointed (a conservator is the person in charge of managing the person*s money and assets), the conservator is required to obtain a surety bond, which typically requires good credit and payment of the annual surety bond premium before qualifying. A surety bond acts like an insurance policy in case the conservator mishandles property or money of the incapacitated person. The annual premium for the surety bond must be paid up front (that is, before the conservator gets access to the person*s assets), and the premium is often $500 or more (depending on the value of the person*s estate).
When are Guardians and Conservators Appointed?A guardian will only be appointed if a court determines there is enough evidence to show a person is incapacitated, such that they can no longer make legal, financial, and/or health-care decisions.
Although people tend to think of guardian and conservator as the same thing, under Virginia law they are separate positions. The guardian is responsible for the health and welfare of the person. The conservator is responsible for the property and finances of the person. Sometimes there may be a need for a guardian, but because of other planning or because the person does not have any extensive property or financial holdings, there is not need for a conservator.
What are the Responsibilities of the Guardian and Conservator?Depending on the extent of the person*s mental capacity, a court-appointed guardian and conservator can be given near complete control over a person*s life and finances. Some of the most common duties include:
* Paying the person*s bills
* Determining where they live
* Monitoring their residence and living conditions
* Providing consent for medical treatments
* Deciding how their finances are handled, including how their assets are invested and if any assets should be liquidated
* Managing real estate and other tangible personal property
* Keeping detailed records of all their expenditures and other financial transactions
* Making end-of-life and other palliative-care decisions
* Reporting to the court about the person*s status at least annually
The extent of duties the guardian is responsible for is up to the court, and the guardian will not be allowed to act in areas the court has not authorized. Moreover, guardians are required to seek the person*s preferences whenever possible*though ultimately, the decision about what action to take will be in the guardian*s hands.
The court can also divide out responsibilities to multiple parties. For example, one person may oversee the financial decisions, while another handles living arrangements and health-care decisions. What*s more, the court will requires detailed status reports, such as financial accounting, at regular intervals or whenever important decisions are made, such as the sale of assets.
Are Guardians and Conservators Compensated?Yes, guardians and conservators are entitled to reasonable compensation for their services based on the person*s financial ability to pay. The appointed guardian and conservator is paid directly from the person*s assets (additionally, any outside costs * such as that surety bond premium * are reimbursable from the person*s assets as well). In most cases, the compensation must be approved by the court ahead of time, and the guardian must carefully account for all of their services, the time spent on tasks on behalf of the person, and any associated out-of-pocket expenses.
Given the huge level of responsibility and loss of control that comes with guardianship, the best course of action is to get proper and updated estate planning in place ahead of time to ensure that if you or anyone you love becomes incapacitated, you can stay out of the court process altogether if possible.
This article is a service of Forrest Law Center PLLC and Jeremy Forrest. We don*t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That's why we offer a Family Wealth Planning Session, during which you will get more financially organized than you*ve ever been before and make all the best choices for the people you love.
This article is for informational purposes only and not intended as legal advice or to create an attorney-client relationship. Every situation is unique and consultation with an attorney is required before any specific advice can be given.