Guardian Ad Litem Association Handbook

http://www.vda.virginia.gov/pdfdocs/Guardbook.pdf

 

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
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