• Karen McPhail, RN, MSN

Guardianship and Conservatorship - Frequently asked Questions


Each state has specific laws regarding guardianship and conservatorship for incapacitated adults. There is slight variation in the laws from state to state. For example, in some states the term guardian to refer to the duties of a guardian and a conservator. In the state of Virginia however, these are not used interchangeably, as guardians and conservators have very specific and defined roles, duties, and responsibilities.


This blog will answer some of the common questions that come up in our practice in the State of Virginia. Please feel free to reach out with additional questions as we are here to help!


What is the difference between a Guardian and a Conservator?

A Guardian is an individual appointed by the Court who is responsible for an adult’s personal affairs. Responsibilities may include making decisions about support, care, health, safety, education, treatment and residence - so decisions relating to non-financial matters. While a Conservator is an individual appointed by the Court who has legal authority to manage the estate and financial affairs of an adult the Court has found to need a conservator. That being said, the primary difference is that a Conservator is responsible for the financial affairs of an adult, and a Guardian is responsible for the personal affairs of an adult.


How can and individual avoid Guardianship and Conservatorship?


There are several ways one can avoid guardianship or conservatorship in the state of Virginia and in general. The most effective way is to have a comprehensive long term care plan and estate plan in place with supporting documents to safeguard ones self in the event that they become incapacitated. By doing good proactive planning and utilizing specific documents, one can have others acting on their expressed wishes rather than making decisions for them! One can choose who they want to have decision-making power and set specific terms and conditions to be followed. Seek out guidance from an Elder care attorney and an RN Care Manager! Some areas to explore and discuss when planning are:

  • Revocable Living Trust

  • Special Needs Trust

  • Durable Power of Attorney

  • Healthcare Durable Power of Attorney

  • Living Will

  • Advance Medical Directives

  • Appointing a Protective Payee or Representative Payee

  • POLST - program should also be explored for specific individuals. https://polst.org


Can I be appointed as a Conservator even if I have not been appointed as an Adult’s Guardian or vice versa?


Simply put yes. Oftentimes, a Judge will appoint one person as Conservator and another person as a Guardian. The Judge may also appoint an individual to act in both roles.


What is a Guardian Ad Litem and what services do they provide?


Guardian Ad Litem (GAL) means “guardian of the suit”. A GAL is an attorney appointed by a Judge to help the Court in making a decision. The GAL does not represent a person. Instead, the GAL gives the Court independent views about what may be best for the respondent. The GAL may conduct interviews and investigations, make reports to the Court and participate in the Court hearings.


Aside from Guardianship or Conservatorship what are other less restrictive options?


Options need to be explored and executed while an individual is still competent!


• Durable medical power of attorney: This document allows an individual to choose the person they want to make medical decisions if they are unable to do so.

• Durable power of attorney: This document allows an individual to choose the person they want to make money and property decisions for them if they are unable to do so.

• Representative Payee: The Social Security Administration may name someone to receive and manage an individual’s Social Security Benefits on his/her behalf. With the recommendation of a medical professional, you can be appointed as a representative payee by your local Social Security Administration Office.


Some other areas of importance:

• Limited Guardianship: In a limited guardianship, a Court Order will specifically designate what decisions the guardian may make and what decisions the individual can continue to make on their own. For instance, if you are seeking guardianship for making medical decisions, the Court Order may specify that the individual will retain their right to vote, get married and/or rent an apartment.


• Limited Conservatorship: In a limited conservatorship, a Court Order will specifically designate what financial decisions the conservator may make and what decisions the individual can continue to make on their own. You can petition for a limited guardianship when the individual has financial resources or an estate beyond Social Security Benefits.


Can an incapacitated person get his/her rights back?


Yes! The incapacitated person, the guardian/conservator, or any other person may file a petition for full or partial restoration of capacity with the Court. The Court may determine that the incapacitated person has regained capacity to manage his or her affairs and order that the person’s rights be fully or partially restored


How we can help:

We are able to perform a comprehensive mental health, cognitive evaluation to determine whether an individual is competent to execute documents or incapacitated and in need of a Guardian or Conservator. A thorough health history, chronology, and review of the client’s presentation, clinical circumstances, and past and present events are reviewed. In some circumstances, as legally appropriate information is also obtained from those most familiar with the client’s overall health situation, including recent events, and circumstances. The cognitive assessment generally takes place in the client’s home environment which may include assisted living, independent living, a personal care home, etc. After the onsite evaluation I completed, a detailed report is generated including impressions and recommendations. The report generated may be used for a variety of purposes including Guardianship/Conservatorship and long term planning.



Resources / Sources:


Guardianship Checklist:

https://thearcofnova.org/content/uploads/sites/6/2016/07/Thinking-about-Guardianship-checklist.pdf


https://mccandlishlawyers.com/practice/elder-law-special-needs/

http://www.courts.state.va.us/courts/circuit/resources/guardianship_faqs.pdf

https://www.thienel-law.com/blog/2018/5/24/how-to-avoid-conservatorship-and-guardianship-in-virginia

https://www.stimmel-law.com/en/articles/basic-law-guardianship

https://www.pldrlaw.com/construction-law-insights-2/471-guardianship-and-conservatorship-in-virginia-the-procedure.html


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