If you’re the parent or relative of a child with special needs, or have another adult family member or friend who has become incapacitated as a result of illness or injury, you will need to make a legal plan for their long-term care and well-being.
Guardianship and conservatorship typically go hand-in-hand, particularly if an incapacitated adult is eligible for government benefits. Here’s what you need to know about a conservatorship arrangement in Virginia and how to file your case with your local Circuit Court.
Learn more about what important legal matters need to be addressed if you have a child with special needs – before your child turns 18.
What is a conservatorship?
A conservator is appointed to manage an incapacitated person’s finances on their behalf. This may include protecting assets and income, managing financial accounts and investments, covering living expenses and bills, and preparing and filing taxes. In essence, the conservator is required to ensure the responsible management of the incapacitated person’s financial resources.
The conservator also serves as the designated payee for any government benefits the incapacitated person may receive, including Social Security Disability Income (SSDI) and Supplemental Security Income (SSI). Except as discussed below, once appointed, designated payees are asked to maintain detailed and accurate record (and receipts) showing f how these benefits payments are spent. These records must be made available for review if requested by the Social Security Administration (SSA), typically in the form of an annual Representative Payee Report.
New Exceptions to Reporting Requirements: Due to a recent federal law change, the natural or adoptive parents of a disabled adult beneficiary who all primarily reside in the same household together do not have to complete an annual Representative Payee Report. In other words, if you are a parent petitioning for the conservatorship of your adult child who lives at home with you (the most common scenario for adult guardianship/conservatorship cases), you will not have to complete this report for the SSA each year.
However, after this major federal law change, the Virginia General Assembly enacted a state law that now requires the conservator (no matter their relationship to the disabled adult beneficiary) to file an annual report if the child is or begins to receive SSI or SSDI payments, showing what these payments have been used for.
For conservators who do not reside with the beneficiary or are not the natural or adoptive parent of the beneficiary, they will be responsible for completing and filing the annual report with both the federal SSA and the local state commissioner of accounts as part of conservator duties.
Full vs. limited conservatorship
There are two types of long-term guardianship/conservatorship for an incapacitated: full and limited. The right arrangement for your circumstances will depend on your child or relative’s level of incapacitation.
- Full – All individual rights of the incapacitated person are taken away, and the guardian/conservator has the sole and final say over personal and financial matters.
- Limited – The guardian/conservator has specific designated responsibilities, while the incapacitated person still has the right to make certain decisions (e.g. voting, where they live, getting married, etc.)
How does the Court appoint a guardian/conservator?
Guardianship/conservatorship cases are filed with your local Circuit Court. The prospective guardian(s)/conservator(s) will file a Petition for Appointment of Guardian and Conservator, along with several other Exhibits and legal forms to ensure that the incapacitated person (the Respondent) and their family are aware of the pending case. A Guardian Ad Litem is also appointed by the court to represent the incapacitated person’s best interests throughout the case.
Appointing a legal guardian/conservator involves taking away all or some of an adult person’s rights and freedoms. Courts will generally not do this unless it is absolutely necessary for the incapacitated adult to live a safe and comfortable life. Therefore, a judge will determine the need for a guardian/conservator based on whether the alleged incapacitated person lacks the capacity to meet the essential requirements for their own health, care, and safety, and/or cannot manage their own property/financial affairs, without assistance.
If these conditions are met, the Court will next determine that the person petitioning to serve as a Guardian and/or Conservator is qualified to be appointed to this important role.For example, someone who has filed for bankruptcy may not be approved to serve as a Conservator by the Court. Once both of these matters have been determined, the judge will enter a final order setting forth the scope of the Guardianship and Conservatorship and the person(s) approved to serve in these roles.
Get help with your guardianship and conservatorship case
Many prospective guardians/conservators feel unable to adequately represent themselves in court on this type of matter; however, hiring an attorney to handle the matter for them from beginning to end can be extremely expensive.
My Legal Case Coach offers an ideal DIY and affordable alternative, with easy-to-use, templatized case form packets for Adult Guardianship/Conservatorship cases. In addition, you will receive one free hour of 1:1 virtual legal coaching with an experienced Virginia attorney with your packet purchase, and have the option to buy reasonable additional blocks of 1:1 coaching time (if needed) for as little as $100 per hour.
These cases are often complex and require a lot of documentation, but MLCC is here to ensure you can easily and effectively prepare all these documents or for a court hearing on your own without spending thousands of dollars on legal fees.