As the population ages, it is becoming increasingly important to know the legal avenues you can take if you suddenly find that a loved one can no longer care for themselves. Virginia law provides for Court proceedings that can have another person named as a guardian or conservator of a person’s affairs.
Best Practice When Planning for Elder Care
The best practice for planning for an aging relative is to have that person choose whom they want to care for their person and finances through an advanced medical directive and a general power of attorney. These documents can be done when a person is competent, and can lay out the steps that are to be taken if they become incapacitated. If a person does not have either of these documents, or is about to turn 18 and cannot make one of these documents, then any person can petition the Circuit Court to name a guardian and conservator to handle this person’s affairs.
Definition of A Guardian
A guardian cares for the person of an incapacitated adult. A guardian’s job entails making medical, educational, housing and other lifestyle decisions about an incapacitated person. The guardian can be a family member, friend or professional.
Definition of A Conservator
A conservator cares for the finances of an incapacitated adult. This job entails paying the bills, caring for or disposing of real estate, and filing for bankruptcy. The conservator can also be a family member, friend or professional.
How To Become A Guardian Or Conservator
In order to become someone’s guardian or conservator, any person can petition the Circuit Court in the County or City in which the incapacitated adult is found or resides. The petition can be filed by the person seeking to become the guardian or conservator, or any interested party. Once the petition is filed, notice must be given to all of the next of kin to the incapacitated adult. The incapacitated adult is given a guardian ad litem, and may have counsel appointed if they request it.
Virginia law requires that a medical doctor evaluate the incapacitated adult and give their opinion on whether the person needs a guardian, conservator or both. The Court will then hear evidence and decide on the petition.
