Virginia Beach Guardianship/Conservatorship Lawyer
Helping Loved Ones Make Decisions When They Can’t Do It Alone
Guardianships and conservatorships are powerful legal tools that exist to safeguard those who, due to various reasons, cannot make decisions independently. But given that the appointment of a guardian or conservator restricts or negates an individual’s right to make personal decisions, the choice to pursue a guardianship or conservatorship should not be taken lightly. There are typically many less restrictive alternatives available that can protect your interests should you become incapacitated, and the estate planning attorneys at The Law Office of Angela N. Manz can show you ways to avoid the prospect of guardianship or conservatorship entirely. As a last resort, however, a guardianship or conservatorship may be appropriate, and our firm is here for you during those times as well. Contact our experienced Virginia Beach guardianship/conservatorship lawyers to discuss your situation or your loved one’s needs and find out how we can help.
Understanding Guardianships and Conservatorships in Virginia
In Virginia, guardians and conservators are entrusted with the solemn duty to care for and represent incapacitated individuals – those who cannot autonomously make decisions. It’s crucial to note that only a Circuit Court judge possesses the authority to determine a person’s incapacitated status and subsequently appoint a guardian and/or conservator.
- What Is a Guardian? A guardian’s role can be multifaceted, encompassing everything from health care to other personal decisions. For instance, a guardian might decide on medical treatments, housing arrangements, or even social interactions like visits and attendance at gatherings. The breadth of a guardian’s power is explicitly outlined in the judge’s order, ensuring that there is clarity on their responsibilities and limitations.
- What Is a Conservator? In contrast to a guardian, a conservator in Virginia is entrusted with the management of the incapacitated individual’s financial matters and properties. They handle assets and investments and ensure bills are paid on time. Like a guardian’s responsibilities, the conservator’s role might be expansive or restricted, based on the specific needs of the incapacitated person.
The Process of Obtaining Legal Guardianship or Conservatorship in Virginia
- Petition Filing: The first step involves submitting a petition to the Circuit Court in the appropriate jurisdiction.
- Notice: The immediate family is notified of the petition and their ability to participate in the proceedings as appropriate.
- Medical Evaluation: A comprehensive medical examination will be conducted to determine whether an individual is incapacitated and the extent of incapacity.
- Guardian ad Litem Appointed: An attorney, appointed by the court as the Guardian ad litem, visits the allegedly incapacitated person, advises them of their rights, and confers with family members and others as appropriate to determine that the guardianship and/or conservatorship is in the best interest of the individual.
- Hearing: The court will schedule a hearing where all parties, including the individual in question, can present their cases. A qualified medical expert will testify on whether and to what extent the individual can manage their affairs.
- Judge’s Decision: Based on the presented evidence, the judge will decide on the incapacitation status and the need for a guardian or conservator.
- Appointment: If the opinion of the court is in favor of a guardianship or conservatorship, the judge will decide who is most suited to fulfill the role of guardian or conservator and make an appointment accordingly.
Effective Estate Planning Can Avoid the Need for Guardianship or Conservatorship
While the appointment of a guardian or conservator is designed to protect an individual, it undeniably curtails their autonomy. For many, this is a measure of last resort. At The Law Office of Angela N. Manz, we are dedicated to providing Virginia Beach residents with estate planning solutions that can preempt the need for such appointments.
By establishing clear and comprehensive powers of attorney, and formulating advance medical directives, you can ensure your wishes and best interests are honored, even if you become incapacitated. Such proactive measures allow you to:
- Dictate medical preferences in advance.
- Designate trusted individuals to manage your finances.
- Avoid the guardianship and conservatorship process in most instances.
By naming people you know and trust to act as your agent or proxy, and by providing clear directions to family members and physicians regarding your medical care, you can help ensure that your healthcare as well as your financial and legal affairs are managed in accordance with your wishes, without subjecting anguished family members to a lengthy court proceeding and possibly winding up with someone in charge of your medical care or finances who would not be your first choice.
Virginia Guardianships/Conservatorships FAQs
Answering Frequently Asked Questions About Guardianships and Conservatorships in Virginia Beach
A guardianship or conservatorship is a rigorous undertaking. It involves going to court and having a person judicially declared legally incompetent to look after themselves or manage their own affairs. Once established, guardianship or conservatorship severely limits a person’s independence while handing over broad authority to another person. Nevertheless, there are times when such legal action is both necessary and proper, and more than a million people in the U.S. currently benefit from guardianship or conservatorship.
If you are seeking guardianship or conservatorship for a loved one, legal help is a must. Below we’ve provided answers to the questions we get most often at The Law Office of Angela N. Manz as we help families through the guardianship and conservatorship processes in Virginia Beach. If you have other questions or need help getting started with a guardianship or conservatorship proceeding, call The Law Office of Angela N. Manz to speak with our compassionate and experienced Virginia Beach guardianship and conservatorship lawyers.
What is the difference between guardianship and conservatorship?
A guardian is responsible for the personal affairs of an incapacitated person, including responsibility for making decisions regarding their support, care, health, safety, living arrangements, education, and medical treatment. A conservator, on the other hand, is responsible for managing the estate and financial affairs of an incapacitated person.
What authority does a guardian or conservator have over an incapacitated person?
The extent of the authority is specified by the judge in the order of appointment. The authority can be quite broad, although it should in theory be only as broad as necessary, tailored to the needs of the individual. When appointing a guardian or conservator, the court can appoint a “limited guardian” or “limited conservator” with only the responsibilities as specified in the order of appointment. The court can also appoint a “temporary guardian” or “temporary conservator” for a limited time as specified in the order of appointment.
Unless the authority is limited in the order of appointment, the guardian or conservator would possess all the powers and duties set out in Virginia Statutes. A guardian’s responsibilities include the following:
- Maintain sufficient contact with the person to know their capabilities, limitations, needs and opportunities
- Visit with them as often as necessary
- Encourage the person to participate in decisions, act on their own behalf, and develop or regain the capacity to manage their personal affairs, to the extent this is feasible
- Consider the expressed desires and personal values of the person when making decisions
- Make funeral and burial arrangements for the individual if no one else has already been designated to make such arrangements
A guardian may not restrict the person’s ability to interact with other persons they have relationships with, unless necessary to keep them physically safe and free from emotional harm or financial exploitation.
A guardian does not have the power to make decisions on topics that are already addressed in a valid advance directive or durable power of attorney which was previously executed by the incapacitated person. If necessary, a guardian could go to court to revoke, suspend or otherwise modify a power of attorney or advance directive, but this would require court approval.
A guardian stands in a fiduciary position to the incapacitated person. This means the guardian must act in the person’s interests and avoid any conflicts of interest. A guardian could be held personally liable for a breach of fiduciary duty owed to the person.
Does the court have to approve the decisions made by the guardian or conservator?
A guardian or conservator is given considerable power and control to make decisions for the incapacitated person, and most of these decisions take place without review or approval of the court. Some decisions that require prior court approval include:
- Changing the person’s residence to another state
- Terminating or consenting to the termination of the person’s parental rights
- Initiating a change in the person’s marital status
What is a “guardian ad litem”?
It can be confusing to see the term “guardian ad litem” used in a guardianship proceeding. You might assume this term refers to the proposed guardian, but it doesn’t. A guardian ad litem is an attorney appointed by the court to look out for the interests of the respondent (the allegedly incapacitated person) during the legal proceeding. The guardian ad litem will visit with the respondent, advise them of their rights, evaluate the petition for guardianship (or conservatorship) and evidence supporting it, and file a report with the court. The guardian ad litem will also recommend a court appointment of counsel for the respondent if necessary. Otherwise, the guardian ad litem will be present at all court proceedings and conferences, advising the court and advocating for the respondent. The guardian ad litem is an important “voice” for the respondent who might not otherwise have an effective say in the proceedings affecting him or her.
What can I do now to avoid needing a guardianship or conservatorship in the future?
Protect yourself and your property by working with an experienced estate planning attorney to draft all the documents you need, including a will, revocable living trust, powers of attorney, advance healthcare directives, HIPAA authorization, and living will. With these documents in place, your personal affairs can be managed by people you trust according to your wishes and directions, without the burden of a guardianship or conservatorship proceeding in a time of crisis. In Virginia Beach, contact The Law Office of Angela N. Manz for help.
Contact The Law Office of Angela N. Manz for Help With Guardianships and Conservatorships in Virginia Beach
Guardianships and conservatorships are undoubtedly significant decisions with long-term implications touching on vital aspects of your health and well-being. As dedicated professionals in Virginia Beach, our team is here to guide you through every step, whether you’re considering these options now or seeking ways to avoid them in the future through estate planning. With personalized solutions tailored to your unique needs, we aim to ensure your peace of mind, knowing your future is in secure hands. Call The Law Office of Angela N. Manz in Virginia Beach to start a conversation or get immediate help today.