When a person is legally deemed incapable of managing their own affairs and has not named a financial power of attorney to do so, a guardian or conservator may be needed. A family member may be appointed to the task, as explained in a recent article “What to Do When a Family Member Needs a Guardian” from Kiplinger.
We represent clients in filing guardianship petitions, and Robyn Ellis also sometimes serves as a professional guardian and conservator.
In Virginia, “guardians” are responsible for personal affairs, while a “conservator” is limited to financial matters.
The control over another person’s life and money has been in the news a lot lately. The years-long battle between Brittney Spears and her father showed how things can go wrong, as did the movie “I Care a Lot,” about a professional guardian who steals life savings from elderly people.
It is better for an adult child to care for a parent through the use of Power of Attorney and Healthcare Power of Attorney than having to go to court to gain control through a guardianship. Having these documents prepared while the person still has legal capacity to execute them is far easier and less costly. Guardianship and conservatorship are last resorts when no prior planning has been done.
How does it work? A person—referred to as the petitioner—files a petition with the circuit court to seek guardianship. A judge holds a hearing to determine whether the person in question, known as the respondent, meets the Virginia standards for needing a guardian. The respondent has a right to have an attorney represent them, if they do not feel they need or want to have a guardian.
Under guardianship, a person may lose the right to vote, marry, own a gun, or make medical decisions. Courts are often reluctant to take away all of these rights.
The least intrusive option is preferable, which would be using the Power of Attorney and Health Care Power of Attorney in the first place.
Making bad decisions, like handling money irresponsibly, or keeping company with people who are potentially preying on a senior, is not enough reason to put someone under guardianship. You cannot always protect someone from themselves.
However, the need for guardianship is clear if a person has suffered a stroke and is in a coma or is suffering from dementia. Other reasons are severe depression where a person cannot function or delirium, when a person is unaware of their environment and confused by everything around them. Delusional disorders are also reasons for guardianship.
When the person meets the standard of need, the courts typically prefer to appoint a family member. However, if there is no appropriate person, a public guardian paid by the state can in circumstances be appointed or a professional guardian paid by the family can be appointed.
Filing a guardianship petition can cost thousands of dollars, and a professional guardian can charge upwards of $250 an hour. Most guardians are well meaning, but often run into conflicts with family members. The guardian’s job is to protect the person, not serve the interest of the family. If the family’s sole interest is in protecting their inheritance, the guardian can find themselves in a difficult situation.
Reference: Kiplinger (Jan. 25, 2022) “What to Do When a Family Member Needs a Guardian”