Are you facing the difficult decisions relating to guardianship? Is a loved one in a position that a guardian may be necessary to care for his or her person or property? Is someone attempting to appoint a guardian for you or someone you love and your are not sure that such action is the best or right alternative. Guardianship is a difficult and personal issue that many of us have to face.
The lawyers of Hale Ball have helped many people sort out the complex and personal issues relating to a guardianship appointment. One of our attorneys will meet with you in person to will discuss the various options that are available to you, and will help you through the maze of issues. Feel free to call today to speak to Jean Galloway Ball or Kimberly Murphy.
Please read below if you are looking for basic information on guardianship.
Guardianship in Virginia
Did you ever come across someone who needed assistance in doing even basic things? Sometimes it is because a person suffers from an incapacity, whether physical or mental. In other cases, it may be because of age (too young, still a "minor") or a medical condition that prevents the full range of activities enjoyed by others. There are detailed rules for obtaining this kind of formal authority over another person, either to assist or to actually make decisions for that person. In Virginia, it is referred to as Guardianship or as Conservatorship. The first and more commonly heard term, "Guardianship," is used to describe a responsibility for the health, safety and welfare of the "person," while the second term, "Conservatorship," describes the authority to make financial decisions for someone or to manage her or her resources and property. It is often the case that one person holds both titles and exercises both duties for an incapacitated person.
First and foremost, incapacitation should not be confused with poor judgment or foolishness. A difference of opinion regarding how or where to spend money, or what action to take, is not usually the basis for establishing a guardianship arrangement. And there can be varying degrees of authority and control in a relationship where one person is helping another, especially if the person fully consents to the assistance being offered.
Power of Attorney. In this arrangement, a document is executed by one person, the "principal," giving authority to another person, the "agent," to perform some or a variety of tasks on behalf of the principal. A general power of attorney gives the agent a broad array of capacity to manage the principal's affairs. If the power of attorney is also "durable," then the authority granted under it will continue even if the principal becomes incapacitated at some point in time, whether temporarily or indefinitely. Under these circumstances, an agent could continue to assist the principal in many activities.
Guardianship. To acquire the formal title and role of a Guardian, a person must first file a petition for a hearing to be held in the Circuit Court of the jurisdiction where the parties reside. A judge will decide based upon evidence presented whether a person is incapacitated within the meaning of Virginia law, and if so, how broad or limited a Guardian's authority should be in making decisions for him or her. In establishing the guidelines for a Guardian, the judge will try to preserve as much of the incapacitated person's independence as possible. The Order approved by the Court will state the extent of the Guardian's responsibility for making personal and care decisions, and may reserve and preserve some tasks as remaining within the incapacitated adult's control.
Conservatorship. This relationship focuses on the power to make financial decisions for the incapacitated person, either in a limited way or an all-encompassing way. It can include the duty to pay bills, invest money, sell property, or generally manage financial resources in a responsible way. The appointed Conservator is required to keep detailed records of all income received and funds expended so that the Court can periodically audit the books and confirm that a proper administration of the funds is occurring. A conservator is required to post a surety bond with the court to assure the proper handing of assets of the incapacitated person, consistent with the Order.