Every person eighteen years of age or older is presumed competent to make decisions about her life, including where to live, work, or go to school; what type of medical care to receive; and how to manage her property and finances. Unfortunately, a disabling condition--such as dementia, stroke, an accident, or an intellectual disability--may incapacitate a person and leave her unable to effectively receive and evaluate information or respond to people, events, or environments in a way that protects or meets the individual's health, care, safety, or therapeutic needs. Making bad choices, or choices that the family does not agree with, is not incapacity.
In the absence of a valid Durable Power of Attorney (DPOA) or Advanced Medical Directive (AMD), the local Circuit Court may appoint a guardian or conservator to make personal and financial decisions on behalf the incapacitated person.
Virginia uses the term "ward" to describe the incapacitated person for whom a guardian and/or conservator has been appointed. The guardian is the person or agency who is appointed to make personal decisions—residential, medical, employment, rehabilitation, and the like--on behalf of the ward. The conservator is the person or agency who is appointed to manage the ward's property and money, pay the ward's bills, and make other financial decisions on behalf of the ward.
Usually, the parents of a disabled child or a child or spouse of a disabled adult serve as guardian and conservator, but a sibling, family member, friend, attorney or an organization that is qualified to serve as a public guardian may serve as well.
When a guardian or a conservator or both is appointed for a ward, the ward loses the right to make the specified decisions herself. The ward also loses the right to vote, own firearms, and drive. Because a guardianship or conservatorship curtails the ward's right to act on her own behalf, Virginia law requires strict adherence to legal protections designed to ensure that a ward needs a guardian and conservator before the Court appoints someone in this role.
The process of appointing a guardian or conservator begins when a petition is filed in the appropriate Circuit Court that states the alleged incapacitated person (known as the Respondent at this stage of the proceeding) cannot manage her personal and/or financial affairs and that the appointment of a guardian or conservator is necessary. If the Respondent is able to manage some of her own affairs, the petition may request a limited guardianship or conservatorship. The petition may also ask the Court to appoint a standby guardian or conservator who will act for a limited time only if the primary guardian or conservator is unable to fulfill his duties.
After receiving the petition, the Court appoints an independent attorney to serve in the role of Guardian ad litem (GAL). The GAL represents the best interests of the Respondent to the Court, but is not the Respondent's attorney. The GAL contacts the Respondent's family members and other interested parties to discuss the Respondent's condition and circumstances. The GAL must meet with the Respondent in person and advise the Respondent that 1) if the petition is successful, the Respondent will lose certain rights, 2) the Respondent can request a jury trial, 3) the Respondent can call witness on her behalf, and 4) the Respondent can hire an attorney to contest the petition.
The Guardian ad litem must also review the medical evidence offered in support of the petition and write a report to the Court stating whether or not the GAL believes a guardian or conservator is necessary and, if so, who should fill the role. The Guardian ad litem's fee is fixed by the Court at the hearing.
The Court will hold a hearing to determine if a guardian or conservator should be appointed for the Respondent. The Court may appoint a limited guardian or a limited conservator if the Court determines that the Respondent is able to manage some of her personal or financial affairs. If the petition is contested, a trial rather than a hearing may be scheduled. The Respondent has the right to attend the hearing or trial, but does not have to.
A guardian or conservator appointed for a ward must qualify before serving. Qualification involves meeting with a clerk of court to pledge faithful service at the risk of paying a penalty. Conservators generally must also purchase a surety (insurance) bond, the amount of which is set by the Court based on the ward's assets and income. To satisfy the bonding company's requirements, the conservator must have sufficient personal assets, good credit and no past bankruptcy or felony conviction.
The guardian must have enough contact with the incapacitated person to know his or her capabilities, limitations, needs, and opportunities. The guardian must also file regular reports on the ward's status with the local Department of Social Services. The conservator must file regular reports with the local Commissioner of Accounts. The guardian and conservator must involve the ward in the decision-making process to the extent the ward is able to participate.