When it’s clear that your aging parent can no longer perform the daily tasks they once could, they may require a guardian to manage their assets and financials and make decisions on their behalf. In these situations, a legal guardianship and conservatorship arrangement may be necessary.
Here’s what you need to know about establishing legal guardianship and conservatorship of an incapacitated parent in the Commonwealth of Virginia.
In legal guardianship and conservatorship, those appointed to act on behalf of an incapacitated person are called agents. To take legal guardianship of a parent, or the ward, one must go through a court process and petition to become that parent’s guardian and conservator.
The process begins by getting a letter, along with evidence, from a licensed physician that states the proposed ward is incapacitated and no longer capable of taking care of themselves or making their own decisions. Because meeting with a physician may be met with resistance by a proposed ward, the proposed agent may proceed with the application and request that the court order the examination.
Once the proposed agent files the application, the court will check into the proposed agent’s background, including financial and criminal history, and decide if any conflicts of interest exist. The proposed ward, along with family members and those with the legal right to know, must be notified of the application.
Throughout the proceedings, the court is statutorily required to appoint a Guardian Ad Litem who acts in the proposed ward’s best interest — as opposed to making decisions based on the ward’s wants. In its discretion, the court may also appoint an attorney to represent the proposed ward and ensure that all actions taken are aligned with the ward’s wishes.
You can learn even more about how a conservatorship works and how to petition for guardianship and conservatorship in our blog on this topic.
As part of the duties of a legal guardian in Virginia, an agent must care for the ward by ensuring their basic living needs, including meals, clothes, and housing, are met. A guardian should act with the least-restrictive care to maintain the ward’s independence.
The agent must make regular visits to the ward, which they should track and record, to ensure their safety and health. In addition, agents must manage the ward’s mental and physical health and take care of any medical needs as necessary, ensuring all decisions have the ward’s best interest in mind.
Court involvement does not end once the agent receives guardianship. To ensure that the arrangement is working, guardians must submit status reports periodically to the Virginia Department of Family Services. As a conservator, annual accountings must be filed with the court through the Commissioner of Accounts, detailing expenses, losses, investments, and more. These duties also mean that the agent must maintain extremely accurate records. Family services can, if they deem it necessary, send a social worker or investigator to meet with the ward.
A Power of Attorney (POA) comes into play when a person becomes incapable of making financial or health-related decisions on their own. The court does not appoint a POA; rather, it’s a legal document in which an agent is selected by an individual to make decisions in their stead should they become incapacitated.
Those in a guardianship arrangement don’t always choose their agent, meaning a ward could wind up with someone in control whom they didn’t envision making decisions on their behalf. In contrast, individuals can use a POA to privately appoint a person they trust, without any need for court involvement, which authorizes that person to act on their behalf both in their financial matters and daily care/medical decisions during any period of incapacity. Even if another family member petitions to be appointed a guardian and conservator, the court will give great weight to and likely appoint the agent named in the individual’s POA should it be determined that a court order is needed.
Are you looking for help setting up legal guardianship for a parent in the Commonwealth of Virginia? My Legal Case Coach can help guide you through the process with templatized legal case forms and one (1) free hour of 1:1 virtual legal coaching. Schedule a complimentary 15-minute consultation and see how we can provide you with all the tools you need to petition for legal guardianship.