Guardianship & Cnservatrship In Virginia
This bklet is prduced by the Virginia Guardianship Assciatin in cperatin with the Virginia Center n Aging the Virginia Calitin fr the Preventin f Elder Abuse & the Virginia Department fr the Aging The infrmatin in this bklet is general in nature, and is ffered t increase public knwledge and awareness abut Guardianship & Cnservatrship in Virginia. It is nt designed t prvide advice n specific case situatins. 2
Intrductin Guardians and cnservatrs are appinted t prtect an incapacitated persn, i.e. smene wh cannt make decisins withut assistance. Incapacitatin shuld nt be cnfused with pr judgment r flishness. Only a Circuit Curt judge can decide that a persn is incapacitated and appint a guardian and/r a cnservatr t act fr the persn. A guardian s authrity can be very brad r can be limited t making specific decisins. Usually a guardian will make persnal and health care decisins but may be respnsible fr ther persnal decisins that mst peple take fr granted, such as whether the persn may have visitrs r will attend a scial gathering. Guardians authrity t make decisins may be limited depending n the ability f the incapacitated adult t care fr sme f his wn persnal, health and safety needs. The extent f the guardian s r cnservatr s authrity will be set frth in the judge s rder and in the Virginia Cde. A cnservatr is respnsible fr managing a persn s financial and prperty affairs. Like the authrity f a guardian, the authrity f a cnservatr may als be limited depending n the situatin f the incapacitated persn. The appintment f a Guardian r a cnservatr remves a persn s right t make decisins fr himself and shuld be cnsidered nly as a last resrt. This ptin shuld be used nly when there are n less restrictive alternatives that will prtect the interest f the incapacitated persn. This bklet will discuss alternatives that may be used t help avid the appintment f a guardian r cnservatr. 3
Smetimes a persn wh might therwise need a guardian r cnservatr can be served in a less restrictive way. Caregiver A caregiver is a persn wh takes care f anther ften because the persn in need cannt care fr himself. Caregivers are usually mtivated by feelings (lve, sympathy, allegiance, etc.), r by financial incentives (pay, etc.). Curts d nt appint peple t be caregivers. Many peple will never need a curt appinted guardian r cnservatr because they have family r ther cncerned individuals wh will prvide the care that they need. Hwever, a caregiver lacks authrity t make legal r financial decisins fr the persn in her care. Alternatives t Guardianship r Cnservatrship Pwer-f-Attrney An Agent, als called an Attrney-in-Fact, is an individual given written authrity, under a Pwer-f-Attrney, t make decisins and take actin n behalf f anther persn (the principal). A pwer-f-attrney is a dcument executed by ne persn (the principal) t chse sme ther persn t act as his agent. The persn wh is selected as the agent fr a principal and named in a pwer-f-attrney must be smene wh is ttally trustwrthy. 4
There are tw types f pwers-f-attrney, as fllws: A general pwer-f-attrney gives the agent the authrity t take actin n behalf f the principal in rder t manage the principal s financial and/r prperty affairs. Hwever, if the principal becmes incapacitated the agent s authrity under a general pwer-f-attrney is autmatically terminated by Virginia law. A durable pwer-f-attrney gives the agent the authrity t act even if the principal becmes incapacitated. Having a durable pwer-f-attrney may make the future appintment f a guardian r cnservatr unnecessary. Regardless f the type f pwer-f-attrney, the pwer ends when the principal revkes it r dies. Advance Medical Directive An Advance Medical Directive is a methd by which the principal prvides instructins abut his health care treatment wishes. The principal als designates an agent t make health care decisins when the principal cannt make his wn decisins. The agent s pwers under the Advance Medical Directive are defined. Representative Payee A representative payee is a persn appinted by a gvernment agency t receive anther persn s gvernment benefits fr him. The persn appinted t be the representative payee is respnsible fr using the beneficiary s benefit t pay the beneficiary s living expenses. 5
The Scial Security Administratin r Department f Veteran Affairs r Railrad Retirement Bard must be cntacted t have a representative payee appinted t administer benefits paid by thse agencies. Trust A trust is an arrangement where ne persn r rganizatin (the trustee) manages prperty fr the benefit f anther persn (the beneficiary). A trust agreement directs hw the trustee is t act. Trusts can be used t preserve certain assets withut terminating a beneficiary s eligibility fr public benefits, i.e. Scial Security disability and Medicaid. A trust may affect a persn s taxes. The advice f a lawyer shuld be sught when creating a trust. Types f Guardianship and Cnservatrship Once a Circuit Curt judge has decided that a guardian r cnservatr is needed fr an incapacitated adult, the judge has sme flexibility in determining what authrity t give the guardian r cnservatr. The judge may make specific prvisins t preserve as much f the incapacitated persn s independence as pssible. There are several types f guardians and cnservatrs as fllws: Full Guardianship Unless the Curt rder appinting him limits his authrity, a guardian is respnsible fr making all persnal and persnal care decisins fr the incapacitated persn. Full guardianship shuld be used nly as a last resrt, i.e. when there are n less restrictive methds that will prvide the needed prtectin. A guardian is required t reprt annually t the lcal department f scial services abut the care prvided t the incapacitated adult. The reprt is 6
t be prepared n a frm issued by the Office f the Executive Secretary f the Supreme Curt f Virginia and prvided t the guardian by the Clerk f the Circuit Curt at the time the guardian qualifies. Limited Guardianship A limited guardianship is used when decisinal help is needed fr specific tasks but nt fr all tasks. Fr example, an incapacitated adult may be able t take care f his wn daily needs but is unable t make health care decisins and has nt designated an agent under an Advance Medical Directive. In this situatin a judge may appint a guardian t make health care decisins leaving the persn free t make all ther decisins. A limited guardian has the same respnsibility as a full guardian t reprt annually t the lcal department f scial services abut the care prvided t the incapacitated adult. Emergency Order fr Adult Prtective Services If the adult in need f prtective services: is incapacitated; is experiencing an emergency; lacks the capacity t cnsent t prtective services needed t address the emergency; and, the prpsed rder is substantially supprted by the findings f the lcal department f scial services that has investigated the case, an emergency r temprary guardian may be appinted fr fifteen days. The purpse f the fifteen day guardianship is t designate a guardian t handle the emergency by authrizing the needed prtective services. Fr an emergency r temprary guardian, an emplyee frm the lcal department f scial services must g t the Circuit Curt and request that a 7
guardian be appinted fr the purpse f handling the emergency. The guardian s appinted can act t crrect the cnditins causing the emergency. If necessary the perid f time fr which the guardian was appinted can be extended by the curt fr anther five days upn shwing t the curt that cntinuatin f the riginal rder is necessary t remve the emergency. Standby Guardian A standby guardian is a persn wh will becme the guardian f an incapacitated persn when the individual wh is currently respnsible fr prviding care dies. This type f guardianship is used t allw parents t plan fr the care f a mentally impaired child after they are gne. A standby guardian des nt assume any duties until the death f the last surviving parent. Full Cnservatr A cnservatr appinted withut limitatins has the authrity t make all financial decisins fr the persn. This includes paying bills, investing mney and selling prperty. A cnservatr is required t pst surety n a bnd with the curt and reprt t the curt abut all incme received and funds expended. Reprts t the curt are made thrugh an fficer f the curt called the Cmmissiner f Accunts. See Cmmissiner f Accunts under Legal Terms Used in Guardian and Cnservatr Cases, in this bklet. Limited Cnservatr A limited cnservatr is used where decisinal assistance is needed nly fr specific financial matters. Fr example, a persn is able t take care f daily needs but is unable t pay bills and fill ut tax returns. The judge will appint a cnservatr t pay bills and fill ut tax returns leaving the incapacitated persn free t make all ther financial decisins. 8
Legal Terms Used in Guardian and Cnservatr Cases Respndent The Respndent is the persn fr whm a guardian r cnservatr is sught befre the curt determines that a guardian r cnservatr is needed. Respndents have the right t: Be represented by legal cunsel Be present at the hearing Present evidence Have witnesses present wh can speak n their behalf Crss-examine all witnesses wh prvide evidence and Have a jury decide the issues. Petitiner The petitiner is the persn wh presents evidence t a Circuit Curt that a persn is unable t take care f his r her affairs. The petitiner may be a cncerned family member, an emplyee f a scial services agency such as Adult Prtective Services, r any persn wh believes that an incapacitated adult needs a guardian r cnservatr. Relatives f the respndent must be ntified abut the hearing. The petitiner als arranges t prvide t the curt medical and/r psychlgical evidence supprting the need fr a guardian r cnservatr. Guardian r Cnservatr 9
A guardian r cnservatr is ttally in charge f the persnal and/r business affairs f the respndent unless the guardian s r cnservatr s authrity is limited by the curt rder. In additin t medical evidence and a capacity evaluatin, a judge may cnsider the wishes f the respndent when deciding n guardianship cases. A family member f the respndent is frequently appinted t be the respndent s guardian r cnservatr. In ther instances, an attrney, a friend f the respndent, a public guardian r a vlunteer may be appinted. One persn may serve as bth guardian and cnservatr r the judge may appint different persns t serve in each capacity. Guardian Ad Litem After a petitin has been filed with the curt t appint a guardian r cnservatr but befre the hearing takes place, the judge appints a guardian ad litem. The guardian ad litem is an attrney whse rle is t prtect the rights f the respndent. He gathers infrmatin t present t the judge as t what is in the best interests f the respndent. Befre the curt hearing, the guardian ad litem must visit the respndent fr whm a guardian r cnservatr is being cnsidered. The guardian ad litem will explain the curt prcess and infrm the respndent f his rights during the hearing. After cllecting infrmatin and meeting with the respndent the guardian ad litem will make a recmmendatin t the judge. Once the hearing is ver, the guardian ad litem s jb is usually cmpleted. Clerk f the Circuit Curt Any persn appinted guardian r cnservatr must qualify befre the Clerk f the circuit curt f the cunty r city where the respndent is a resident r is 10
lcated. The guardian r cnservatr qualifies by taking an ath prmising t faithfully perfrm the duties given in the curt rder. He als answers questins regarding his wn credit, residence, and criminal backgrund. He psts a bnd as rder by the curt and he accepts any educatinal materials prvided by the curt. Once the persn is qualified, the clerk will give the guardian r cnservatr a certificate alng with a cpy f the rder. This certificate indicates that the guardian r cnservatr is prperly authrized t act regarding matters cntained in the curt s rder f appintment. Cmmissiner f Accunts A Cmmissiner f Accunts receives and reviews financial reprts frm the cnservatr. The cnservatr must file an inventry with the Cmmissiner f Accunts within fur mnths after qualificatin. The first accunting must be filed within six mnths after qualificatin. The secnd accunting is due 12 mnths after the first accunting; i.e. 18 mnths after qualificatin. Subsequent accuntings are due annually. Lcal Department f Scial Services The lcal department f scial services receives and reviews reprts frm the guardian. The reprt is reviewed t assess the timely submissin f the reprt and the care and prtectin f the incapacitated adult. The curt will infrm the guardian f the due date f the reprt. Twice each year the lcal department f scial services is required t file with the clerk f the circuit curt a list f all guardians wh are mre than 90 days delinquent in filing an annual reprt. Failure t file a required reprt may result in an Adult Prtective Services investigatin. 11
Frequently Asked Questins 1. Hw d I knw if a persn needs a guardian r a cnservatr? A guardian may be needed fr a persn: Whse functinal capacity prevents him frm caring fr his wn basic needs withut the assistance f a guardian; Wh is at risk f substantial harm r explitatin, and; Wh has n family member r ther persn available t assume respnsibility fr assisting him. A cnservatr may be needed fr a persn: Whse functinal capacity prevents him frm managing his wn financial affairs r is at risk f financial explitatin withut the assistance f a cnservatr; Wh has n family member r ther persn available t assist with financial respnsibilities; and Wh cannt be financially prtected by use f ther less restrictive mney management methds. 2. Wh decides whether a persn will have a guardian r a cnservatr? The judge f the Circuit Curt decides whether a persn needs a guardian r a cnservatr. Befre deciding, the judge must have clear and cnvincing evidence f the need fr a guardian r cnservatr. The decisin is based upn a medical reprt evaluating the cnditin f the respndent, testimny cncerning the difficulties f the respndent and the reprt f the guardian ad litem. 12
3. What are the duties f the guardian? The guardian makes decisins abut hw the incapacitated persn lives including decisins abut health and medical treatment, residence and scial activity. When knwn the guardian applies the values f the incapacitated persn in making these decisins. When nt knwn the guardian must make every effrt t learn the incapacitated persn s values. 4. What are the duties f a cnservatr? The cnservatr takes charge f the management f the incapacitated persn s prperty and is respnsible fr identifying that prperty by taking an inventry. The cnservatr must file the inventry with the Cmmissiner f Accunts. The incapacitated persn s mney must be kept separate and cannt be put int the cnservatr s wn bank accunt. The cnservatr is authrized t make investments and ther financial decisins fr the incapacitated persn. The cnservatr must als give an accunting f the incapacitated persn s prperty t the Cmmissiner f Accunts as described under Cmmissiner f Accunts in the Legal Terms Used in Guardian and Cnservatr Cases sectin f this bklet. 5. Hw can a guardianship r cnservatrship be ended? Any persn wh believes that the guardian r cnservatr is nt acting as required by law cncerning the incapacitated persn may petitin the curt t end the guardianship r cnservatrship, r t review the actins f the guardian r cnservatr, r t have anther persn appinted t be the guardian r cnservatr. 13
The incapacitated persn may petitin the curt t end the guardianship r cnservatrship. If he is able t shw an ability t care fr and manage his r her wn affairs the judge will end the guardianship r cnservatrship. The guardian r cnservatr may petitin the curt t end the guardianship r cnservatrship. The death f the incapacitated persn ends the authrity f the guardian r cnservatr. Publicatins Additinal infrmatin f interest t guardians and cnservatrs is available in the fllwing publicatins: Virginia Handbk fr Guardians and Cnservatrs: A Practical Guide fr Curt-Appinted Guardians and Cnservatrs f Adults Virginia Guardianship Assciatin Pst Office Bx 9204 Richmnd, VA 23227 Phne: (804) 261-4046 Web page: www.vgavirginia.rg Senir Citizens Handbk Laws & Prgrams Affecting Senir Citizens in Virginia Virginia State Bar 707 East Main Street, Suite 1500 Richmnd, VA 23219 Lcal: (804) 775-2548 14
Guide t Cnsent & Substitute Decisin Making Virginia Assciatin f Cmmunity Services Bards (VACSB) In partnership with Virginia Netwrk f Private Prviders Dwnlad frm www.vacsb.rg and click n special prjects Additinal Resurces Virginia Guardianship Assciatin Pst Office Bx 9204 Richmnd, VA 23227 Telephne: 804-261-4046 Website: www.vgavirginia.rg The Virginia Lawyer Referral Service 707 East Main Street, Suite 1500 Richmnd, VA 23219 Tll-free: 1-800-552-7977 (Natinwide) Lcal: 775-0808 TTY: (804) 775-0502 Web Site: www.vsb.rg/vlrs.html Virginia Department f Scial Services Adult Prtective Services (A service f the Virginia Department f Scial Services) 7 Nrth Eight Street Richmnd, VA 23219 24-Hur, Tll-Free APS Telephne Line: 1-888-832-3858 Web Site: www.dss.virginia.gv Reprts f suspected abuse, neglect, and/r explitatin f elders r adults with disabilities may be made t a lcal department f scial services r by calling the tll free line listed abve. 15
APS receives and investigates reprts/cmplaints f abuse, neglect, explitatin f elders and adults with disabilities and prvides prtective services t elders and adults with disabilities wh are fund thrugh investigatins t be in need f prtective services. Area Agencies n Aging (AAA) are lcated thrughut the State. Fr infrmatin n services in yur area that can help lder persns, their families and caregivers, cntact yur lcal Area Agency n Aging. Fr cntact infrmatin see their web site at http://www.vaaaa.rg/agencies.html. 04/04/2008 16