Guardianships and conservatorships are needed when the individual or family does not have an estate plan to provide for the challenges that accompany illness and aging. This is another reason we encourage everyone to have a properly prepared comprehensive estate plan, regardless of their age and stage of life.
A complete estate plan includes a Durable Power of Attorney or an Advanced Medical Directive, and a Healthcare Power of Attorney, along with a Living Will. When prepared and completed in a timely manner, these documents accomplish the twin goals of allowing the individual to state their wishes and name the person(s) they want to take charge of financial affairs and health care decisions if and when they are unable to do so.
If there is no estate plan, or if an estate plan has not been finalized, the family must undertake an application to become a guardian or conservator. These court appointed roles allow a family member or any other interested person named by the court to gain legal control of the person’s financial matters and take an active role in their health care.
A guardianship or conservatorship is also needed when a mentally-disabled child attains the age of 18 and requires the help of a legal guardian or conservator to supervise their adult life.
Because guardianship and conservatorships both require involvement of the court in the person’s life for many years, it is always preferable to have these matters resolved while the person still has legal capacity. If this is not the case, then our aim is to identify possible alternatives to guardianship, which can be onerous.
For instance, if the person’s only income is a government check or a public benefit, in some cases it is possible for a Representative Payee to be named to avoid the conservatorship. That could potentially save thousands of dollars over the years in insurance premiums on surety bonds.
If there are no alternative to guardianship, the first step is to verify the person’s incapacity with a doctor who is experienced in examining patients with cognitive deficits.
Once incapacity has been medically established, our estate planning attorneys draw on our years of experience in guardianship actions to prepare an application for the court.
Among his many other accomplishments, Attorney Robert W. Haley is certified by the Virginia Supreme Court as an approved Guardian ad Litem. In that capacity, Mr. Haley represents the best interests of the potential ward, investigates the case and reports to the Judge of the Circuit Court.
What is a Guardian ad Litem?
A Guardian ad Litem is a person appointed by the Court to watch after a person, called a “ward,” who has been found to be unable to care for him or herself. But unlike typical guardians or conservators, the Guardian ad Litem (GAL) is appointed to represent the ward in a limited matter. If children sue to have a parent declared incapacitated and request a guardian or conservator, the court may decide a GAL is necessary to represent the parent in the instant case regarding the parent’s capacity or lack thereof. If a person needs immediate care and cannot make decisions on their own, a GAL will be appointed.
Why Does Someone Need a Guardian?
In cases of Alzheimer’s Disease or other dementias, people lose the ability to make decisions about their health care, finances or manage the daily activities of living. When that occurs, a guardian is needed to make decisions about the impaired person’s life. Can they continue to live independently, or do they need to be moved to a skilled nursing home? Are they a risk to themselves or others around them?
A traumatic brain injury, a stroke or an auto accident can also lead to incapacity. When this occurs, if there is no estate plan in place with the necessary legal documents, a guardianship is how a parent or spouse, or adult child takes over the care of their loved one.
When needed, an emergency temporary guardianship can be created for someone who needs the support of a guardian but only for a limited period of time. The guardian may pay bills, make medical decisions, and help the person move from the hospital into a rehabilitation center, for example. At the conclusion of a specified period of time, the guardianship will automatically terminate. If it is necessary for the guardianship to continue, the guardian can petition the court to continue the guardianship.
It is also possible to have a limited guardianship ordered by the court. A person who can manage most of the activities of daily living, but cannot keep their finances in order, for instance, may benefit from a guardian who will be solely responsible for their finances.
An experienced guardianship attorney is needed to guide the spouse, adult children, or family through the process. It should be noted that any interested party can apply for guardianship and there is no requirement the petitioner be related to the person they believe in need of help.
Our firm has represented many families where the guardianship was contested by other family members and by people not known to the family. Because notice of a petition for guardianship must be provided to the person, their spouse, adult children, and any interested parties, sometimes people take it upon themselves to be involved who might not otherwise be engaged with the individual.
What Happens When You’re Appointed a Guardian?
Once you’re appointed as a guardian or conservator, the real work begins. The court will issue a “Letter of Guardianship” to be used when representing the ward with banks, hospitals, etc., confirming your appointment. Good recordkeeping is critical to protect yourself and your ward as you begin to manage their financial and healthcare needs. Every transaction and decision needs to be carefully documented. Depending upon the court, you may be required to make monthly or annual reports.
Knowledgeable, strong legal representation in the guardianship process is extremely important for a successful outcome. If you have any additional questions, contact today to schedule an appointment.
Certified Elder Law Attorney Robert W. Haley and staff are ready to help you with estate planning and medicaid planning. Let our firm put our experience and diligent legal representation to work for you. Contact us today to learn how The Estate & Elder Law Center of Southside Virginia, PLLC can help you.