INTEGRITY LAW – GUARDIANSHIPS
“What do I do if my aging parent needs someone to handle her affairs?”
Understanding Guardianship in Virginia
One of the more painful and potentially divisive choices families make comes when Mom or Dad can no longer manage their own affairs. As America’s population ages, these difficult issues become more and more frequent. Integrity Law can help you secure your parent’s future.
What are my options?
Power of Attorney.
A power of attorney is a document allowing one person to make decisions on behalf of another.
- It is voluntary. The parent must be of sound mind to execute a power of attorney.
- It is inexpensive. A lawyer can draft a power of attorney for a very reasonable price.
- It is easily changed at the parent’s wish. Execution of a new power of attorney automatically cancels all previous ones.
- The parent must be of sound mind to execute a power of attorney. If the parent is not competent, it’s too late to execute a power of attorney.
- If a parent issues multiple powers of attorney to different people, the old power of attorney can still be used to take actions in the parent’s name unless the person has notice of the new power of attorney. This can lead to extreme confusion, and even to multiple people making claims to your parent’s assets.
- If the parent is incapable of taking care of her own needs but unwilling to admit it, she is not likely to execute a power of attorney.
- It does not require that the parent be competent to make decisions. In fact, it requires a court finding that the parent can no longer care for himself.
- It will be on record with the court, where a power of attorney usually is not. This eliminates the chances of confusion involved if multiple powers of attorney are in existence.
- It does not require the parent’s consent. (And anyone can apply for a guardianship; a family member, a department of social services, or an unrelated third party).
Do I need both a guardianship and a conservatorship?
A guardianship allows the guardian to make caretaking and medical decisions for the parent. However, it does not give the guardian authority over the parent’s finances. This requires a conservatorship. Often, clients will seek to be appointed both as guardian and conservator.
How does the process of being appointed as a guardian or conservator work?
- File a Petition for Guardianship/Conservatorship in the Circuit Court of the city or county where your parent resides.
- The court will appoint a “guardian ad litem” (“GAL”). The GAL is essentially a court-appointed lawyer for the parent. The GAL has several responsibilities. She will make an independent report to the court as to what she believes is in the parent’s best interests. She will seek to make sure there is no “undue influence” – that is, that the prospective guardian is not simply seeking to take control of the parent’s assets for personal benefit.
- Prepare a Notice of Hearing. This is a document to be submitted to the parent (and explained, if possible) by the guardian ad litem. It explains that the parent would lose legal rights if the guardianship is granted, and that all rights to make decisions for the parent would be assumed by the guardian.
- Obtain a medical/psychiatric evaluation. The court will require a signed statement from a doctor or psychiatrist diagnosing the parent’s condition and reporting the medical professional’s opinion as to whether a guardian or conservator is needed.
- Give notice to immediate family members. Virginia law requires that any surviving immediate family members of the parent (spouse, siblings, children) must all be given a copy of the Petition for Guardianship and the Notice of Hearing.
- “Qualify” as guardian/conservator. Once the hearing occurs, if the guardianship is granted, the applicant must be “qualified” before the Clerk of Court. If the proposed guardian has a criminal record or a bankruptcy, the guardianship/conservatorship petition may be denied. The proposed guardian/conservator must obtain a bond with a bonding company, usually in an amount at least equal to the value of the parent’s estate, to ensure that, even in the event of misconduct by the guardian, the parent is not left destitute.
- Once “qualification” has occurred, the Clerk issues the guardian/conservator a “certificate of qualification,” which is the legal document allowing the guardian to assume control over the parent’s real estate, bank accounts, medical records, etc.
The decision to assume responsibility to care for an aging parent can be very difficult, and if it is contested by other family members, can be very divisive and involve extensive litigation. You need experience and committed representation.