Estate Planning & Guardianship
Every adult should have three documents: a durable power of attorney; an advance medical directive; and a last will and testament. These documents need to be prepared while the adult is competent.
A power of attorney authorizes someone to act on your behalf. A general power of attorney covers your property and finances. It allows your agent to access your accounts to pay your bills, sell your real property, and make purchases on your behalf. It is effective only while you are alive; it is not a substitute for a will. If a person becomes incompetent and does not have a power of attorney, family members must petition the court to have a conservator appointed for the incapacitated person. The court process results in a time delay, additional expenses, and a duty to file accountings.
An advance medical directive covers your person. This directive authorizes someone to make medical decisions for you when you are unable to do so. It is effective only while you are alive. If a person becomes incompetent without having an advance medical directive, family members must petition the court to have a guardian appointed for the incapacitated person.
A last will and testament saves expense in the settlement of your estate. You can specify who receives what items of your property, who handles the settlement of your estate, who handles funds held in trust for a minor beneficiary, and under what restrictions can trust funds be used for the beneficiary.
Contact our office to learn how we can help with your estate planning needs.
Guardians, Conservators, and Alternatives for Incapacitated Adults
In Virginia, when an individual reaches the age of majority (18 years old), that person is automatically granted the right to make his or her own decisions regarding healthcare, residence, finances, and other day-to-day needs. However, in some cases, a soon to be adult may not be capable of making informed decisions about these issues usually due to severe cognitive and/or physical impairments. Other individuals may not be able to care for themselves later in life due to physical or cognitive limitations or conditions due to age, injuries, illness or permanent disability. In such situations, the incapacitated adult typically needs to have a guardian and/or conservator appointed by the court to ensure support and safety.
What is a guardian or conservator?
In Virginia, a guardian is an individual that a court appoints to make decisions regarding the personal affairs of an incapacitated person. A conservator is an individual appointed by the court who is responsible for handling the estate and financial affairs of an incapacitated person. The same person can serve as both guardian and conservator for an incapacitated adult when both roles are needed. The purpose of both is to look out for the best interests of an incapacitated person when that individual no longer can do so.
How are guardians and conservators appointed?
In order for a guardian to be appointed, a court must find that the adult lacks the capacity to meet the essential requirements for his or her health, care, safety, and/or therapeutic needs without the assistance or protection of a guardian. In order for a conservator to be appointed, a court must find that the adult lacks the capacity to manage property or financial affairs without the assistance or protection of a conservator. Both of these standards are very high bars – a person must not simply be prone to making bad decisions, but rather wholly incapable of making informed decisions at all. A court requires an independent finding and evaluation by a licensed professional (typically a medical or mental health provider) in order to protect the alleged incapacitated adult and to help the court determine the extent of their incapacity. Additionally, the court will appoint a guardian ad litem (“GAL”) to represent the interests of the alleged incapacitated adult. The GAL is not the incapacitated adult’s attorney and the incapacitated adult has the right to hire an attorney in addition to having the GAL.
Are there any alternatives?
While a guardianship and/or conservatorship may be appropriate for some situations, they are drastic measures that that take away the right of an incapacitated adult to make one’s own decisions regarding personal or financial affairs. In most cases, a person under a guardianship loses the right to drive, vote, and marry, among other rights. Accordingly, a guardianship may not be appropriate for every situation and there are other options available.
A durable power of attorney may be a suitable alternative to a guardianship or conservatorship. With a durable power of attorney, an individual can appoint an agent to manage his or her property and financial affairs in case he or she becomes incapacitated. A durable power of attorney must be created prior to an individual becoming incapacitated.
Similarly, an advanced medical directive also may be a viable alternative to a guardianship. An advanced medical directive allows an appointed agent to make medical decisions for an individual when one is no longer able to do so. This document allows the appointed agent to do such things as authorize treatment, hire medical providers, authorize admission into a hospital, deal with insurance companies, and make end-of-life decisions consistent with the expressed wishes of the individual.
At Locke and Quinn, we have experience in handling guardianships, conservatorships, and alternatives to guardianship. Please contact our office with any further inquiries about these services.