Legal Assistance for Adult Guardianship in VA

An adult guardianship or conservatorship is created when a Virginia circuit court determines that a person is unable to manage his or her own personal or financial affairs and appoints a guardian and/or conservator for that person. The person for whom a guardian or conservator is appointed is called the incapacitated person, determined incapable of making decisions because of severe disabilities, and thus, in need of protection. For example, the person may be an elderly parent with Alzheimer’s or an adult child with severe autism. If they are unable to make decisions about medical treatment or to obtain appropriate food and shelter for themselves, they need an adult guardian. If the court finds a person to be unable to make decisions due to their disability, it will appoint someone to act on behalf of the disabled person, making decisions about the individual's person, property or both. A guardian is the person appointed to handle the affairs of the incapacitated person. A conservator handles the financial affairs of the incapacitated person. The guardian and conservator may be the same person.

Concerned? Evans Oliver can help.

If you’re concerned for the responsible care of a disabled loved one, we can help you navigate the legal process to gain guardianship. Or if you’re concerned about your own potential disability or incapacity and the possibility of the court appointing a guardian for you instead of selecting your own guardian candidate – then we can help you execute a durable power of attorney and a duly probated will. Preparing for a guardianship or conservatorship ahead of time in the event that you become incapacitated or disabled will guarantee that the persons you select, outside of some extenuating, disqualifying circumstance, will be there to take care of you in the event of some tragic accident or illness.

Some Frequently Asked Questions

How is disability determined?

Using poor judgment or being eccentric does not mean a person is incompetent. To fit the legal definition, the inability to make reasonable decisions must be the result of a mental or physical disease or disability.

The court determines disability if:

  • Two physicians (or one physician and one psychiatrist) have determined, in writing, that a person is unable to make or communicate responsible decisions

  • The person is in need of protection

  • There are no less restrictive measures to allow for decision making

What is the role of the guardian?

The court appoints a guardian of the person if the court finds by clear and convincing evidence that an individual is incapable of making or communicating decisions regarding his or her person, giving informed consent for treatment, or making decisions about where he or she will live. The guardian of the person has the same rights and duties that a parent has over a minor child.

The guardian has a duty to provide care and comfort for the individual, including looking after medical, social, recreational and friendship needs. The guardian of the person may file an annual report describing the disabled person's circumstances over the past year.

Guardians aren’t expected to micromanage a ward’s life, since they’re not providing caretaking services. One way to think of it is as a provision of decision-making services. Guardians step in when necessary to make decisions and give consent to things that the incapacited person doesn't have the capability of doing on their own. This is the limit of their duties. The court may give a guardian of the person the authority to make all decisions for the person or it may outline specific authority of the guardian. The individual retains the right to make decisions over anything for which the guardian is not responsible.

What is the process for legally obtaining an adult guardian?

An attorney, hired by you, a family member, friend or other interested party (such as the local Department of Social Services), must file a petition with the court and provide evidence from physicians, family or friends that the individual is in need of a guardian.

Another attorney is appointed by the court to meet with the individual being considered for guardianship. This attorney represents the individual to the Court. In addition, this attorney for the disabled may be required to make a report to the court giving his or her opinion about whether a guardian is needed. The role of the attorney for the disabled is to provide legal protection for the disabled person.

What is the process for a guardian’s decision making?

A guardian should be guided by the two standards of decision-making identified in the law:

  • Substituted Consent: Making a decision based on the individual's wishes, as you know them. It is important, whenever possible, for the guardian to use substituted consent. At times, older persons have discussed their feelings regarding medical treatment with family and friends. If the individual’s feelings are known, the guardian can support that view and make the decision that the individual would have made.

  • Best Interest: Use the standard of best interest when the guardian is not aware of the individual's wishes, that is, the guardian should look at the pros and cons of the procedure or situation and determine what is in the individual’s best interest.

The guardian of the person must seek special permission from the court to:

  • Move the individual from a private home to a nursing home, or from an assisted living facility to a nursing home unless such authority to move the person (called changing the abode) was granted in the original guardianship order.

  • Consent to or withhold consent to medical treatment that poses a substantial risk to the life of the disabled person.

There are times when the guardian of the person does not have to return to court in these circumstances; these include:

  • When the court has given authority to make life-sustaining medical treatment decisions in advance because the disabled person has executed an advance directive that allows the guardian to make such decisions

  • When the guardian is the spouse, adult child, parent or sibling of the disabled person. This is because under the Health Care Decisions Act, these relatives would have the authority to make life-sustaining treatment decisions as a Surrogate Decision Maker even if there was no guardian.