Trustworthy Answers To Your Important Questions
At the Law Office of Krista L. Newton PLLC, we believe strongly in making sure our clients have the information they need to make informed decisions about their legal matters. We do this by answering questions in a straightforward, easy-to-understand manner.
Below are just a few of the more common questions we get asked regarding guardianships and conservatorships. If you don’t see your question or would like clarification on any of the questions below, we encourage you to contact us to schedule an appointment at our Manassas office.
What does it mean to be someone’s guardian?
If a Virginia court has appointed you a guardian, this means you are now responsible for another individual (known as your ward) and their personal affairs. This includes making decisions about their financial support and health care, making arrangements for a place for your ward to live, making decisions regarding their education options, and ensuring their safety among other things.
Being appointed a guardian is different from being appointed a conservator. A conservator only has authority over a ward’s estate and financial affairs. Judges in Virginia have discretion over whether they appoint the same person to uphold both responsibilities or if two people will be appointed, one as conservator and one as guardian.
How does the process of becoming a guardian work?
- You file a petition requesting guardianship over an individual (called the respondent) in the circuit court for the city or county in which the respondent lives.
- The court then appoints a guardian ad litem to investigate all statements made in your petition, and they make a determination about the validity of your request.
- You will present evidence to the court that supports your claim that the respondent is incapacitated and therefore should be your ward.
- You must then schedule a court hearing where a judge will hear your case, including the guardian ad litem’s findings.
- The judge will make their ruling. If the judge agrees with your petition, then a court order will be issued, which will grant you guardianship over the respondent.
- After receiving the court order, you must then get the order formally qualified before the clerk of the circuit court.
What are the benefits of selecting a guardian versus court appointment?
There are a lot of duties and responsibilities required of a guardian, which may not be achievable by everyone. Instead of leaving it to chance and hoping that the person the court selects will be able to uphold their duties and responsibilities as a guardian, many people name their own guardian after having a conversation with that individual and confirming that the individual they have selected fully understands what will be asked of them in the event the worst should happen.
Knowing that your guardian understands their duties and responsibilities is just part of the benefit of selecting your own guardian. Most people select a person they trust implicitly, which gives people peace of mind knowing that they will be well cared for and that their guardian is making the same decisions the ward would make for themselves if they were able.
When is the best time to seek guardianship of an elderly loved one?
Because every family’s situation is a little different, there is no cookie-cutter response to this question. The decision to establish a guardianship or conservatorship should be based on your specific circumstances. That having been said, there are a couple of noteworthy things to look out for that could indicate the need for guardianship or conservatorship:
- Onset of serious illnesses or diseases that could lead to incapacitation, such as terminal illnesses, Alzheimer’s disease and dementia, just to name a few
- Confusion or decision-making impairment that is affecting things like obtaining medical treatment, keeping up on financial matters or making simple decisions concerning self-care
- Real estate or property needs to be sold, or investments need to be tended to
- Medical intervention is needed outside of what is outlined in an advance directive
Because guardianship can take away basic rights, such as voting or getting married, it’s very important to seek professional help, such as from an attorney, to ensure you fully understand what will happen if a guardianship is established.
Can I transfer guardianship to someone else if I no longer wish to be a guardian?
Yes. Under § 64.2-2114 of Virginia law, a guardian may petition the court to transfer guardianship to another person. The new individual does not need to be a resident of the state of Virginia in order for the transfer request to be made. Just like with the initial process of requesting guardianship, there is a similar process for transfer requests that require notification of transfer, a plan for care and services, and the option for the new individual to object to the transfer of guardianship.
Do You Have More Questions?
If you have any lingering questions about guardianships or conservatorships, or any general estate planning questions, we are happy to provide answers. Please reach out to us via email or call our Manassas office at 571-659-4186 to schedule an appointment.