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. Merely 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. Even if there is a valid DPOA or AMD, there could still be reasons that a guardian or conservator would need to be appointed. This can occur when the agent is not acting in accordance with the principal’s wishes or there is a need for decision making outside the purview of the DPOA or AMD.
Virginia uses the term "incapacitated person" 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 incapacitated person. The conservator is the person or agency who is appointed to manage the incapacitated person's property and money, pay the incapacitated person's bills, and make other financial decisions on behalf of the incapacitated person. The court may authorize estate planning powers. The Code addresses management powers and duties of the conservator.
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 an incapacitated person, the incapacitated person loses the right to make the specified decisions herself. The person also can lose the right to vote, own firearms, and drive. Because a guardianship or conservatorship curtails the person's right to act on her own behalf, Virginia law requires strict adherence to legal protections designed to ensure that a person needs a guardian and conservator before the Court appoints someone in this role. The court can appoint separate people or one and the same person as guardian and conservator. It also is possible to have co-guardians and/or co-conservators.
The process of appointing a guardian or conservator begins when a petition is filed in the appropriate Circuit Court which states that 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 or the court may grant only 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/her 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. Where necessary, the court can appoint an attorney for the Respondent.
A report evaluating the condition of the Respondent must be prepared by one or more licensed physicians or psychologists or licensed professionals skilled in the assessment and treatment of the physical or mental conditions of the Respondent. Requirements for the evaluation report are contained in the Code.
A health care provider is required to disclose or make available to the Guardian ad litem (and to the attorney for the Respondent) any information, records, and reports concerning the Respondent.
In conducting its investigation, the Guardian ad litem must review the 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 and who should be approved. 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 an incapacitated person must qualify before serving and must do so within a month of adjudication. 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 incapacitated person's assets and income, to be paid from the incapacitated person’s funds. To satisfy the bonding company's requirements, the conservator must be financially acceptable to the bonding company, meaning usually he or she must have sufficient personal assets, good credit, and no past bankruptcy or felony convictions.
Once appointed, 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 incapacitated person'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 incapacitated person in the decision-making process to the extent the incapacitated person is able to participate.
There are special provisions relating to incapacitated Veterans and their beneficiaries wherein a trustee for the Veteran or the beneficiary of a Veteran can be appointed.