By: TIFFANY HOLLAND | GoDanRiver.com
Published: February 08, 2012
» 11 Comments | Post a Comment
Seven people from the Danville chapter of Virginia Organizing protested predatory lending Wednesday while standing in front of Advance America Payday Loans on Piney Forest Road.

The group held signs — many with shark themes — blasting what they believe are unfair lending practices of payday loan businesses. Organizers said they hope to get the attention of state Sen. Bill Stanley and to get him to vote in favor of anti-predatory loan legislation in the General Assembly.

“Payday loan sharks charge over 300 percent [annual percentage rate], purposefully locate their shops in low-income minority communities, and perpetuates a vicious cycle of debt for hard working Virginians,” said Virginia Organizing’s Julie Blust in a news release.

In his first protest with Virginia Organizing, Danvillian Mike Huggins said he was willing to stand out in the cold and rain with a sign against “loan sharks” because he thinks it is important to send a message to people. And the time had come for him to be active in his opinions.

“I don’t agree with the way a lender will lend in ways they know is predatory,” said Huggins. “I’m pro social justice. When does it come to the point to be a part of the change you want to see?”

According to Advance America’s website, in Virginia a loan for $100 has a fee of $28 and an adjustable percentage rate of 340 percent and a $500 loan has a $120 fee and an APR of 292 percent. The website states these figures assumes a 30-day term and the fee and APR include a loan origination fee of $20 for every $100 borrowed and a verification fee of $5 plus interest at 36 percent assuming a 30-day term and that the fee is financed.

But many people believe that the payday loans help people in Virginia.

Jamie Fulmer, the vice president of public affairs at Advance America, said customers are very well aware of what the rates are when they take out a loan and they have been “overwhelmingly satisfied” with the service.

“I think Virginia Organizing has long been a critic of ours and in spite of their rhetoric, thousands of people in the commonwealth choose to use our services everyday,” said Fulmer. “Our customers use a product they value and they choose because it is an affordable option.”

Fulmer called the event a “publicity stunt” and said it insults the business and “degrades” the customers. Fulmer said he favors more dialogue with customers and legislators as opposed to having a protest.

The main target for the protest — other than driver’s passing by — was Stanley, who is a member of the Commerce and Labor Committee.

Virginia Organizing’s Nik Belanger thanked Stanley for his vote in favor of Senate bill 163 that helps homeowners in fraudulent foreclosures, but criticized him for not supporting bills Virginia Organizing believe protect people from predatory lending services.

The group urged Stanley to support legislation that caps the annual rate for payday loans at 36 percent.

Stanley could not be reached for comment at press time.

Divorce in Virginia

prepared
by the Family Law Section of the
VIRGINIA STATE BAR

Given the increase in marital breakdown in our society, almost everyone has been or could be affected in some way by a separation or divorce. Dissolving a marriage often involves property rights and financial matters and can raise complicated legal problems, especially when children are involved.

The Family Law Section of the Virginia State Bar prepared this pamphlet to provide the public with basic answers to some of the fundamental questions concerning divorce and separation under the laws of the Commonwealth of Virginia. It is our hope that this information will assist individuals in understanding some of the complications that often arise in this area of the law so that potential pitfalls may be prevented, minimized, or solved through a lawyer’s counsel and services.

1. What are the Grounds for Divorce?

Virginia law recognizes two types of divorce: divorce from bed and board (a mensa et thoro) and a divorce from the bond of matrimony (a vinculo matrimonii). A divorce from bed and board is a partial or qualified divorce under which a husband and wife are legally separated from each other but are not permitted to remarry. A divorce from the bond of matrimony is a complete and absolute divorce. Any person granted a divorce from bed and board may ask the court to “merge” the decree into a divorce from the bond of matrimony after at least one year has passed from the date the parties originally separated.

The law requires that “grounds” (valid reasons for divorce prescribed by law) for divorce must exist and be proven to the court even if the husband and wife agree that a marriage should end. These grounds are briefly described below.

Divorce from Bed and Board

a. Willful desertion or abandonment

Desertion or abandonment requires both the breaking off of cohabitation and an intent to desert in the mind of the offender. A mere separation by mutual consent will not be considered desertion by either spouse. Further, if one spouse leaves because the other has committed acts that legally amount to cruelty, then the spouse who leaves is not guilty of desertion. In fact, the spouse who leaves may be awarded a divorce on the ground of cruelty or constructive desertion.

If desertion grounds exist, a suit for a divorce from bed and board may be filed with the court immediately after the separation. If the desertion continues for more than one year from the date the parties originally separated, then the desertion is sufficient to constitute a ground for divorce from the bond of matrimony.

b. Cruelty and reasonable apprehension of bodily harm

Cruelty authorizing divorce requires acts that tend to cause bodily harm and render the spouses’ living together unsafe. Mental cruelty alone is not normally a ground for divorce in Virginia. However, if the conduct is such that it affects and endangers the mental or physical health of the divorce-seeking spouse, it may be sufficient to establish grounds for divorce. Normally, however, rude words alone will not suffice.

Cruelty constitutes the basis for a divorce from bed and board and can be filed immediately after the parties separate. After one year has elapsed from the time the act(s) of cruelty were committed, grounds will exist for a divorce from the bond of matrimony.

Divorce from the Bond of Matrimony

a. Separation divorce — the “No Fault” divorce

While grounds for divorce traditionally implied misconduct by one or the other spouse, modern divorce laws do not require “fault” grounds for a divorce to be granted. A “no fault” divorce from the bond of matrimony may be awarded upon a showing that for more than one year the husband and wife both intended to and have continuously lived separate and apart without any cohabitation. If the husband and wife have entered into a Property Settlement or Separation Agreement and there are no minor children, the time period is reduced from one year to six months.

Although separation provides a “faultless” ground for divorce, fault may still be an issue when spousal support (alimony) is being sought or can be a factor in determining the division of marital property. Further, a judge is free to award a divorce on fault grounds even though “no fault” separation grounds exist, conversely is free to award a “no divorce” even if fault grounds exist.

b. Adultery, sodomy, or buggery

Proving adultery is very fact-specific. The evidence must be strict, satisfactory and conclusive that the other spouse did in fact engage in sexual relations with another person. While there must be some corroboration of the testimony of a spouse to prove adultery, “eyewitness” testimony as to the adulterous acts is not required. In fact, most cases of adultery are proven without eyewitness testimony by using other evidence of the circumstances involved. Sodomy is a sexual act, other than intercourse, such as oral or anal sex. To be grounds for divorce, it must be committed with someone outside the marriage. Buggery is bestiality or a sexual act against nature. The standard of proof for these grounds is the same as that for adultery. Suspicion or speculation is not enough.

The “guilty” spouse has a number of “defenses” to the charge of adultery, sodomy or buggery. If the guilty spouse can successfully establish any one of these defenses, then a divorce will not be awarded on these grounds. These are very fact specific and should be reviewed with an attorney.

c. Conviction of a felony

If the husband or wife has been convicted of a felony, sentenced to confinement for more than one year and is in fact confined, then the other party has grounds for a divorce from the bond of matrimony as long as he or she does not resume cohabitation with the guilty spouse after knowledge of the confinement.

Annulments

Unlike a divorce which dissolves a valid marriage, an annulment is a legal decree that a marriage is void. Annulments are granted only in limited circumstances such as a marriage entered into because of fraud, duress or coercion. An annulment cannot be granted merely because the marriage is of short duration, and annulments are normally not granted for “religious” reasons.

2. What property rights are created by marriage and Divorce?

Virginia statutes now provide for the “equitable” distribution of the marital property between the parties at the conclusion of the divorce. “Marital property” consists of all jointly-titled property as well as all other property, other than separate property, acquired by either or both of the parties from the date of the marriage through the time of the final separation. “Separate property” is property owned by one party prior to the marriage, property acquired after the parties have separated, inherited property and/or gifts to one party from a third person. Where “marital property” and “separate property” are mixed together or where the value of “separate property” is increased through the active efforts of either party during the marriage, then such property may be classified as “marital property” or as “part marital and part separate” property.

In equitably dividing the marital estate, the courts may order monetary awards to one of the parties, divide the property, order the property sold or transfer jointly-titled marital property to one of the parties. Under Virginia’s system of “equitable distribution,” the court is not required to divide the marital property on an equal basis. Instead, the court will consider various factors listed in the Virginia equitable distribution statute, including the relative monetary and non-monetary contributions of each of the parties to the well being of the family and to the acquisition and care of the marital property, when determining how to divide the marital assets. Pensions and retirement plans that were accumulated during the course of the marriage are also subject to division by the Court as part of its equitable distribution award. However, by statute, neither party can receive more than one-half of the amount of the other party’s pension or retirement plan that accumulated during the marriage.

3. When is Spousal Support Awarded?

Given the increasing changes to both the law and society, this area of divorce law is in the process of great change. Under recent changes in the Virginia law, the fault of a spouse in causing a divorce may no longer be a complete bar to obtaining spousal support. However, the court will consider the cause of separation as a factor in determining whether or not to award spousal support.

Spousal support is not awarded to punish a guilty spouse. Rather, it is provided to lessen the financial impact of divorce on the party who is less financially independent. The amount awarded for support depends upon such factors as the respective ages of the parties, assets and earning potential of the parties and the duration and history of the marriage. The court may award spousal support in periodic payments and/or in a lump. Periodic payments could be awarded for either a set number of years or an indefinite period of time. Spousal support set by the court is subject to modification in the future upon a change in the circumstances of either party.

Spousal support does not have to be awarded when the divorce is granted. Instead, the parties may seek a “reservation” of the right to seek spousal support in the future. This reservation will generally last for one half of the length of the marriage.

4. Who Receives Custody of the Children?

This is the crucial issue in most divorces. In determining the custody of minor (under eighteen) children, the court is guided by one standard<the best interest of the child. The court may award “joint legal custody” where both parents have a role in making decisions for the child, or “sole legal custody” where one parent is ultimately responsible for making decisions in the child’s best interests. Custody will not be given to a parent as a reward or deprived from a parent as a punishment. Rather, custody will be awarded to the parent who is most adaptable to the task of caring for the child, and who is able to control and direct the child. Further, custody may be changed if there is a marital change in circumstances after the date of the divorce.

Factors considered by the court when awarding custody may include the age of the parent and child, the physical and mental condition of each parent and child, the relationship existing between each parent and each child, the needs of the child, the role played by each parent in the upbringing and caring for the child, the home where the child will live and the child’s wishes if the child is of sufficient age, intelligence, and maturity to make such a decision.

Another important factor to the court in establishing most custody arrangements is which parent will be the most likely to see to it that the non-custodial parent remains a strong part of the child or children’s lives. Often the court will fashion living arrangements such that the child, at least during the school year, will reside primarily with one parent. The other parent will receive visitation with the child. Visitation rights will be set by the court if there is a dispute and the parents cannot voluntarily agree upon satisfactory arrangements.

5. What are the Child Support Obligations?

Normally the party receiving visitation will be called upon to contribute to the support of the minor child. This could be an obligation of the mother, the father, or both, if a third person has custody of the child. The court is guided by the needs of the child and the ability of the supporting parent or parents to pay. The use of the state child support guidelines provides an amount of child support that is presumed to be correct, but the court may deviate from these guidelines in appropriate circumstances. The award is subject to change so long as the obligation to support remains. The child support amount may be increased or decreased if a material change occurs in the circumstances of either or both of the

parents or of the child. Non-custodial parents who have their children for more than 90 days per year for visitation have their child support calculated using a different formula that is likely to make the support lower. The court may also require a party to maintain an existing life insurance policy to provide financial security for a child in the event that the parent obligated to pay child support dies.

The court can also apportion tax exemptions for the children between the parties.

6. What is a Property Settlement Agreement?

Rather than having the court rule upon the issues in the case, parties have the option of reaching a voluntary agreement resolving their concerns raised in the divorce. The court will enforce the agreement once it is in writing, signed, sworn to by both parties, and properly notarized. Oral agreements dividing the marital property may also be enforceable, but the terms of oral agreements are very difficult to prove to the court.

A Property Settlement Agreement is a written contract between the parties that sets forth their rights, duties and obligations that arise out of their separation and divorce and may include such things as the division of their property, spousal support, attorney’s fees, custody of their children, and child support. Such agreements are encouraged since they may amicably settle the rights of the husband and wife in the estate and property of the other. An attorney’s skill and experience can be especially helpful in negotiating and drafting a fair, just, and reasonable Property Settlement Agreement for the parties and their children.

7. What are the Court Procedures?

Controversies over custody, child support and spousal support are usually heard before a judge of a Circuit Court. In some cases, such as where no grounds for divorce yet exist, such matters may be heard in a Juvenile and Domestic Relations District Court, independent of the suit for divorce. Depending upon the practices in a given locality, evidence in a divorce case may be taken in the office of an attorney representing one of the parties, in the office of a commissioner appointed by the court to take the evidence, or in a courtroom before a judge.

8. Are Attorneys Necessary? Who Pays the Fees?

Although an attorney is technically not required in a divorce proceeding, each spouse should obtain separate legal counsel if there are issues in the divorce that may be contested, property rights need to be determined, or the custody of the children is in dispute. The same attorney cannot represent both sides in a divorce case because there will be a conflict of interest.

A husband or wife who employs an attorney should discuss with the attorney his or her fees and make satisfactory arrangements to pay them. Quite often, a lawyer will require an initial payment made prior to the attorney starting work, called a retainer.

Depending on the circumstances, one spouse may be called upon to pay or contribute to the attorney fees and court costs incurred by the other. Whether either party has to pay all or a portion of the other party’s attorneys fees are matters left to the discretion of the court.

Conclusion

Emotional tensions in an unhappy marriage can make it difficult, if not impossible, for the average couple to deal coolly or objectively with divorce and separation. An attorney, equipped with a specialized knowledge of the law in divorce, custody, and related issues, can help a client be fully aware of his or her own rights and obligations in this complex field of law.

updated 10/2011

Virginia State Bar
Eighth and Main Building
707 E. Main Street, Suite 1500 • Richmond, VA 23219-2800
(804) 775-0500 • www.vsb.org

For assistance in finding a lawyer, contact the
VIRGINIA LAWYER REFERRAL SERVICE
1 (800) 552-7977 (Statewide)
or (804) 775-0808 (Richmond)
Voice/Telecommunications Device
for the Deaf: (804) 775-0502

A security researcher has posted a video detailing hidden software installed on smart phones that logs numerous details about users’ activities.

In a 17-minute video posted Monday on YouTube, Trevor Eckhart shows how the software – known as Carrier IQ – logs every text message, Google search and phone number typed on a wide variety of smart phones – including HTC, Blackberry, Nokia* and others – and reports them to the mobile phone carrier.

The application, which is labeled on Eckhart’s HTC smartphone as “HTC IQ Agent,” also logs the URL of websites searched on the phone, even if the user intends to encrypt that data using a URL that begins with “HTTPS,” Eckhart said.

The software always runs when Android operating system is running and users are unable to stop it, Eckhart said in the video.

“Why is this not opt-in and why is it so hard to fully remove?” Eckhart wrote at the end of the video.

In a post about Carrier IQ on his website, Eckhart called the software a “rootkit,” a security term for software that runs in the background without a user’s knowledge and is commonly used in malicious software.

Eckhart’s video is the latest in a series of attacks between him and the company. Earlier this month, Carrier IQ sent a cease and desist letter to Eckhart claiming he violated copyright law by publishing Carrier IQ training manuals online. But after the Electronic Frontier Foundation, a digital rights group, came to Eckhart’s defense, the company backed off its legal threats.

The Electronic Frontier Foundation said the software that Eckhart has publicized “raises substantial privacy concerns” about software that “many consumers don’t know about.”

Carrier IQ could not immediately be reached for comment. But the company told Wired.com that its software is used for “gathering information off the handset to understand the mobile-user experience, where phone calls are dropped, where signal quality is poor, why applications crash and battery life.”

On its website, Carrier IQ, founded in 2005, describes itself as “the world’s leading provider of Mobile Service Intelligence solutions.”

Watch video of Eckhart explaining his findings:

*Update: A Nokia spokeswoman said CarrierIQ does not ship products for any Nokia devices

Update: Grant Paul, a well-known iPhone hacker who goes by the screenname “chpwn”,wrote on his blog that Apple has included Carrier IQ on the iPhone, but the software’s default is disabled.

Judge cuts record verdict, sanctions lawyer

September 5th, 2011 · No Comments · Discipline, sanctions, verdicts and settlements

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Did You Know? Is it hearsay? Test your knowledge.

Test your hearsay knowledge with the following two examples, involving price tags and bar codes. Should the trial court sustain a hearsay objection or overrule it? We’ve included the answers at the end, as well as links to the opinions in the two cases on which the questions are based.

Question 1:

The loss prevention officer at a retail store saw a customer attempting to sneak out of the store with a coat stuffed under his sweater. He called out to the customer, who just stood there, shaking his head. When the case came to General District Court, the loss prevention officer answered the question, “tell the Court the fair market value of this sport coat on the day you stopped the defendant,” by replying, “the price tag says $201.00.”

Based on: Robinson v. Commonwealth, 258 Va. 3, 516 S.E.2d 475 (1999).

Question 2:

On further reflection, the witness remembered that the coat didn’t have a price tag fixed to it, only a bar code. He’d scanned the bar code and printed a receipt, which showed a $201.00 price.

Based on: Twine v. Commonwealth, 48 Va. App. 224, 629 S.E.2d 714 (2006).

In both cases the hearsay objection would be overruled.

Question 1 is based on Robinson, which recognized a hearsay exception specifically for store price tags in shoplifting cases “permitting the admission into evidence of price tags regularly affixed to items of personalty offered for sale or, in substitution, testimony concerning the amounts shown on such tags when … there is no objection to such testimony on best evidence grounds.” The Virginia Supreme Court reasoned that, “Shoplifting is something that occurs thousands and thousands of times throughout this country every day. It is common knowledge that department and other stores regularly affix price tags to items of merchandise and that the tagged price is what a purchaser must pay to acquire an item, without the opportunity to negotiate a reduced price or to question how the tagged price was reached. Under these circumstances, ‘the inherent unreliability of hearsay is not present.’”

Question 2 is based on Twine, which held that the price tag exception recognized in Robinson extends to a cash register receipt generated by scanning the bar codes on the stolen items of merchandise or, in substitution, testimony concerning the amounts shown on such a receipt when there is no objection to such testimony on best evidence grounds. The Twine court observed that while the stolen items differed from the merchandise shoplifted in Robinson in that they did not have price tags affixed to them by the retailer, they did have individual bar codes on them that, when scanned, revealed their purchase prices. Further, the scan of the shoplifted items produced a receipt that summarized the prices charged by the store for the stolen merchandise. Plainly, such a receipt is no less inherently trustworthy and reliable than the testimonial valuation summaries admitted into evidence in Robinson. The court properly overruled Twine’s best evidence objection to the cash register receipt, since the bar codes would have been meaningless to the fact finder at trial, without a printout of the prices generated by scanning the bar codes on the products at a register.

The hearsay questions in this email are derived from the materials for Virginia CLE®’s 38th Annual Criminal Law Seminar.

Visit our “Did You Know?” Archive for previous emails on a variety of Virginia legal topics.

A Guide to Evidence in Virginia, designed for both criminal and civil litigators, covers the price tag exception to the hearsay rule and cites both the Robinson and Twine decisions. Its convenient size makes it ideal to take to court. If you order the 2011 edition now, you will receive the 2012 edition, which will be published in the next few weeks, at no additional charge.

http://www.magnetmail.net/actions/email_web_version.cfm?recipient_id=647078357&message_id=1619927&user_id=VACLE&group_id=740556&jobid=7915706

Guardianship
&
Conservatorship 

In
Virginia 2
This booklet is produced by
the Virginia Guardianship Association
in cooperation with
the Virginia Center on Aging
the Virginia Coalition for the Prevention of Elder Abuse
&
the Virginia Department for the Aging 

The information in this booklet is general in nature, and is offered to
increase public knowledge and awareness about Guardianship &
Conservatorship in Virginia.  It is not designed to provide advice on
specific case situations.   3
Introduction
Guardians and conservators are appointed to protect an incapacitated person,
i.e. someone who cannot make decisions without assistance.  Incapacitation
should not be confused with poor judgment or foolishness.
Only a Circuit Court judge can decide that a person is incapacitated and appoint
a guardian and/or a conservator to act for the person.
A guardian’s authority can be very broad or can be limited to making specific
decisions.  Usually a guardian will make personal and health care decisions but
may be responsible for other personal decisions that most people take for
granted, such as whether the person may have visitors or will attend a social
gathering.  Guardians’ authority to make decisions may be limited depending on
the ability of the incapacitated adult to care for some of his own personal, health
and safety needs.  The extent of the guardian’s or conservator’s authority will be
set forth in the judge’s order and in the Virginia Code.
A conservator is responsible for managing a person’s financial and property
affairs.  Like the authority of a guardian, the authority of a conservator may also
be limited depending on the situation of the incapacitated person.
The appointment of a Guardian or a conservator removes a person’s right to
make decisions for himself and should be considered only as a last resort.  This
option should be used only when there are no less restrictive alternatives that will
protect the interest of the incapacitated person.  This booklet will discuss
alternatives that may be used to help avoid the appointment of a guardian or
conservator. 4
Sometimes a person who might otherwise need a guardian or conservator can
be served in a less restrictive way.
o Caregiver
A caregiver is a person who takes care of another often because the person in
need cannot care for himself.  Caregivers are usually motivated by feelings (love,
sympathy, allegiance, etc.), or by financial incentives (pay, etc.).  Courts do not
appoint people to be caregivers.
Many people will never need a court appointed guardian or conservator because
they have family or other concerned individuals who will provide the care that
they need.  However, a caregiver lacks authority to make legal or financial
decisions for the person in her care.
Alternatives to Guardianship or Conservatorship
o Power-of-Attorney
An Agent, also called an Attorney-in-Fact, is an individual given written authority,
under a Power-of-Attorney, to make decisions and take action on behalf of
another person (the principal).
A power-of-attorney is a document executed by one person (the principal) to
choose some other person to act as his agent.  The person who is selected as
the agent for a principal and named in a power-of-attorney must be someone
who is totally trustworthy. 5
There are two types of powers-of-attorney, as follows:
A general power-of-attorney gives the agent the authority to take action on behalf
of the principal in order to manage the principal’s financial and/or property affairs.
However, if the principal becomes incapacitated the agent’s authority under a
general power-of-attorney is automatically terminated by Virginia law.
A durable power-of-attorney gives the agent the authority to act even if the
principal becomes incapacitated.   Having a durable power-of-attorney may make
the future appointment of a guardian or conservator unnecessary.
Regardless of the type of power-of-attorney, the power ends when the principal
revokes it or dies.
o Advance Medical Directive
An Advance Medical Directive is a method by which the principal provides
instructions about his health care treatment wishes.   The principal also
designates an agent to make health care decisions when the principal cannot
make his own decisions.  The agent’s powers under the Advance Medical
Directive are defined.
o Representative Payee
A representative payee is a person appointed by a government agency to receive
another person’s government benefits for him.  The person appointed to be the
representative payee is responsible for using the beneficiary’s benefit to pay the
beneficiary’s living expenses. 6
The Social Security Administration or Department of Veteran Affairs or Railroad
Retirement Board must be contacted to have a representative payee appointed
to administer benefits paid by those agencies.
o Trust
A trust is an arrangement where one person or organization (the trustee)
manages property for the benefit of another person (the beneficiary).  A trust
agreement directs how the trustee is to act.  Trusts can be used to preserve
certain assets without terminating a beneficiary’s eligibility for public benefits, i.e.
Social Security disability and Medicaid.  A trust may affect a person’s taxes.  The
advice of a lawyer should be sought when creating a trust.
Types of Guardianship and Conservatorship
Once a Circuit Court judge has decided that a guardian or conservator is needed
for an incapacitated adult, the judge has some flexibility in determining what
authority to give the guardian or conservator.  The judge may make specific
provisions to preserve as much of the incapacitated person’s independence as
possible.
 There are several types of guardians and conservators as follows:
o Full Guardianship
Unless the Court order appointing him limits his authority, a guardian is
responsible for making all personal and personal care decisions for the
incapacitated person.  Full guardianship should be used only as a last resort, i.e.
when there are no less restrictive methods that will provide the needed
protection.  A guardian is required to report annually to the local department of
social services about the care provided to the incapacitated adult.  The report is 7
to be prepared on a form issued by the Office of the Executive Secretary of the
Supreme Court of Virginia and provided to the guardian by the Clerk of the
Circuit Court at the time the guardian qualifies.
o Limited Guardianship
A limited guardianship is used when decisional help is needed for specific tasks
but not for all tasks.  For example, an incapacitated adult may be able to take
care of his own daily needs but is unable to make health care decisions and has
not designated an agent under an Advance Medical Directive.  In this situation a
judge may appoint a guardian to make health care decisions leaving the person
free to make all other decisions.  A limited guardian has the same responsibility
as a full guardian to report annually to the local department of social services
about the care provided to the incapacitated adult.
o Emergency Order for Adult Protective Services
If the adult in need of protective services:
• is incapacitated;
• is experiencing an emergency;
• lacks the capacity to consent to protective services needed to
address the emergency;
• and, the proposed order is substantially supported by the findings
of the local department of social services that has investigated the
case,
an emergency or temporary guardian may be appointed for fifteen days.  The
purpose of the fifteen day guardianship is to designate a guardian to handle the
emergency by authorizing the needed protective services.
For an emergency or temporary guardian, an employee from the local
department of social services must go to the Circuit Court and request that a 8
guardian be appointed for the purpose of handling the emergency.  The guardian
so appointed can act to correct the conditions causing the emergency.  If
necessary the period of time for which the guardian was appointed can be
extended by the court for another five days upon showing to the court that
continuation of the original order is necessary to remove the emergency.
o Standby Guardian
A standby guardian is a person who will become the guardian of an incapacitated
person when the individual who is currently responsible for providing care dies.
This type of guardianship is used to allow parents to plan for the care of a
mentally impaired child after they are gone.  A standby guardian does not
assume any duties until the death of the last surviving parent.
o Full Conservator
A conservator appointed without limitations has the authority to make all financial
decisions for the person.  This includes paying bills, investing money and selling
property.  A conservator is required to post surety on a bond with the court and
report to the court about all income received and funds expended.  Reports to the
court are made through an officer of the court called the Commissioner of
Accounts.  See Commissioner of Accounts under Legal Terms Used in Guardian
and Conservator Cases, in this booklet.
o Limited Conservator
A limited conservator is used where decisional assistance is needed only for
specific financial matters.  For example, a person is able to take care of daily
needs but is unable to pay bills and fill out tax returns.  The judge will appoint a
conservator to pay bills and fill out tax returns leaving the incapacitated person
free to make all other financial decisions. 9
Legal Terms Used in Guardian and Conservator
Cases
o Respondent
The Respondent is the person for whom a guardian or conservator is sought
before the court determines that a guardian or conservator is needed.
Respondents have the right to:
o Be represented by legal counsel
o Be present at the hearing
o Present evidence
o Have witnesses present who can speak on their behalf
o Cross-examine all witnesses who provide evidence and
o Have a jury decide the issues.
o Petitioner
The petitioner is the person who presents evidence to a Circuit Court that a
person is unable to take care of his or her affairs.  The petitioner may be a
concerned family member, an employee of a social services agency such as
Adult Protective Services, or any person who believes that an incapacitated adult
needs a guardian or conservator.  Relatives of the respondent must be notified
about the hearing.  The petitioner also arranges to provide to the court medical
and/or psychological evidence supporting the need for a guardian or conservator.
o Guardian or Conservator10
A guardian or conservator is totally in charge of the personal and/or business
affairs of the respondent unless the guardian’s or conservator’s authority is
limited by the court order.  In addition to medical evidence and a capacity
evaluation, a judge may consider the wishes of the respondent when deciding on
guardianship cases.  A family member of the respondent is frequently appointed
to be the respondent’s guardian or conservator.  In other instances, an attorney,
a friend of the respondent, a public guardian or a volunteer may be appointed.
One person may serve as both guardian and conservator or the judge may
appoint different persons to serve in each capacity.
o Guardian Ad Litem
After a petition has been filed with the court to appoint a guardian or conservator
but before the hearing takes place, the judge appoints a guardian ad litem.   The
guardian ad litem is an attorney whose role is to protect the rights of the
respondent.   He gathers information to present to the judge as to what is in the
best interests of the respondent.
Before the court hearing, the guardian ad litem must visit the respondent for
whom a guardian or conservator is being considered.  The guardian ad litem will
explain the court process and inform the respondent of his rights during the
hearing.
After collecting information and meeting with the respondent the guardian ad
litem will make a recommendation to the judge.  Once the hearing is over, the
guardian ad litem’s job is usually completed.
o Clerk of the Circuit Court
Any person appointed guardian or conservator must qualify before the Clerk of
the circuit court of the county or city where the respondent is a resident or is 11
located.    The guardian or conservator qualifies by taking an oath promising to
faithfully perform the duties given in the court order.  He also answers questions
regarding his own credit, residence, and criminal background. He posts a bond
as order by the court and he accepts any educational materials provided by the
court.  Once the person is qualified, the clerk will give the guardian or
conservator a certificate along with a copy of the order.  This certificate indicates
that the guardian or conservator is properly authorized to act regarding matters
contained in the court’s order of appointment.
o Commissioner of Accounts
A Commissioner of Accounts receives and reviews financial reports from the
conservator.  The conservator must file an inventory with the Commissioner of
Accounts within four months after qualification.  The first accounting must be filed
within six months after qualification.  The second accounting is due 12 months
after the first accounting; i.e. 18 months after qualification.  Subsequent
accountings are due annually.
o Local Department of Social Services
The local department of social services receives and reviews reports from the
guardian.  The report is reviewed to assess the timely submission of the report
and the care and protection of the incapacitated adult.   The court will inform the
guardian of the due date of the report.  Twice each year the local department of
social services is required to file with the clerk of the circuit court a list of all
guardians who are more than 90 days delinquent in filing an annual report.
Failure to file a required report may result in an Adult Protective Services
investigation. 12
Frequently Asked Questions
1. How do I know if a person needs a guardian or a conservator?
A guardian may be needed for a person:
o Whose functional capacity prevents him from caring for his own
basic needs without the assistance of a guardian;
o Who is at risk of substantial harm or exploitation, and;
o Who has no family member or other person available to assume
responsibility for assisting him.
A conservator may be needed for a person:
o Whose functional capacity prevents him from managing his own
financial affairs or is at risk of financial exploitation without the
assistance of a conservator;
o Who has no family member or other person available to assist with
financial responsibilities; and
o Who cannot be financially protected by use of other less restrictive
money management methods.
2. Who decides whether a person will have a guardian or a conservator?
The judge of the Circuit Court decides whether a person needs a
guardian or a conservator.  Before deciding, the judge must have clear
and convincing evidence of the need for a guardian or conservator.
The decision is based upon a medical report evaluating the condition
of the respondent, testimony concerning the difficulties of the
respondent and the report of the guardian ad litem. 13
3. What are the duties of the guardian?
The guardian makes decisions about how the incapacitated person
lives including decisions about health and medical treatment,
residence and social activity.  When known the guardian applies the
values of the incapacitated person in making these decisions.  When
not known the guardian must make every effort to learn the
incapacitated person’s values.
4. What are the duties of a conservator?
The conservator takes charge of the management of the incapacitated
person’s property and is responsible for identifying that property by
taking an inventory.  The conservator must file the inventory with the
Commissioner of Accounts.   The incapacitated person’s money must
be kept separate and cannot be put into the conservator’s own bank
account.  The conservator is authorized to make investments and other
financial decisions for the incapacitated person.  The conservator must
also give an accounting of the incapacitated person’s property to the
Commissioner of Accounts as described under Commissioner of
Accounts in the Legal Terms Used in Guardian and Conservator
Cases  section of this booklet.
5. How can a guardianship or conservatorship be ended?
Any person who believes that the guardian or conservator is not acting
as required by law concerning the incapacitated person may petition
the court to end the guardianship or conservatorship, or to review the
actions of the guardian or conservator, or to have another person
appointed to be the guardian or conservator. 14
The incapacitated person may petition the court to end the
guardianship or conservatorship.  If he is able to show an ability to care
for and manage his or her own affairs the judge will end the
guardianship or conservatorship.
The guardian or conservator may petition the court to end the
guardianship or conservatorship.
The death of the incapacitated person ends the authority of the
guardian or conservator.
Publications
Additional information of interest to guardians and conservators is available in the
following publications:
Virginia Handbook for Guardians and Conservators:  A Practical Guide for
Court-Appointed Guardians and Conservators of Adults
Virginia Guardianship Association
Post Office Box 9204
Richmond, VA  23227
Phone:  (804) 261-4046
Web page:  www.vgavirginia.org
Senior Citizens Handbook – Laws & Programs Affecting Senior Citizens in
Virginia
Virginia State Bar
707 East Main Street, Suite 1500
Richmond, VA  23219
Local:  (804) 775-2548 15
Guide to Consent & Substitute Decision Making
Virginia Association of Community Services Boards (VACSB)
In partnership with Virginia Network of Private Providers
Download from www.vacsb.org and click on special projects
Additional Resources
Virginia Guardianship Association
Post Office Box 9204
Richmond, VA  23227
Telephone:  804-261-4046
Website:  www.vgavirginia.org
The Virginia Lawyer Referral Service
707 East Main Street, Suite 1500
Richmond, VA  23219
Toll-free:  1-800-552-7977 (Nationwide)
Local:  775-0808
TTY:  (804) 775-0502
Web Site:  www.vsb.org/vlrs.html
Virginia Department of Social Services
Adult Protective Services  (A service of the Virginia Department of Social
Services)
7 North Eight Street
Richmond, VA 23219
24-Hour, Toll-Free APS Telephone Line:  1-888-832-3858
Web Site:  www.dss.virginia.gov
Reports of suspected abuse, neglect, and/or exploitation of elders or adults with
disabilities may be made to a local department of social services or by calling the
toll free line listed above. 16
APS receives and investigates reports/complaints of abuse, neglect, exploitation
of elders and adults with disabilities and provides protective services to elders
and adults with disabilities who are found through investigations to be in need of
protective services.
Area Agencies on Aging (AAA) are located throughout the State.  For
information on services in your area that can help older persons, their families
and caregivers, contact your local Area Agency on Aging.  For contact
information see their web site at http://www.vaaaa.org/agencies.html.
04/04/2008

Virginia State Bar’s crackdown on lawyer’s blog raises questions