In the Commonwealth of Virginia, guardians and conservators are appointed to protect the interests of a person who is deemed incapacitated. Incapacitated does not merely mean someone who makes poor decisions, but rather an individual who does not have the ability to make decisions without the assistance of another. Only a judge of the Circuit Court can determine the incapacity of a person and appoint another to act for that individual.
A guardian typically makes personal and health care decisions for the incapacitated person. A conservator is responsible for managing the incapacitated person’s finances and property.
The process for appointment of a guardian and/or conservator is described in the Code of Virginia. Initially, a petition for guardianship and/or conservatorship is filed in the Circuit Court by the individual who is asking the Court to be appointed to represent the incapacitated individual (petitioner). A guardian ad litem is then appointed by the Court. The guardian ad
litem is an attorney who represents the interests of the allegedly incapacitated individual (respondent). The GAL interviews the petitioner, the respondent and any other individuals who may provide relevant information pertaining to the issue of capacity of the respondent. He or she also reviews all relevant medical records. After doing so, the GAL files a report with the Court outlining his or her recommendations with regard to the issue of capacity and whether or not the petitioner should be appointed as guardian and/or conservator. A hearing is noticed and held. If the judge finds that the respondent is incapacitated and the petitioner should be appointed, an Order is entered by the Court. Thereafter, the petitioner makes an appointment in the Probate Office to receive the appointment paperwork and post an appropriate bond. Bonds for conservators are typically more expensive than those for guardians since conservators are tasked with the protection of the individual’s finances and property. This process on the whole can be quite costly.
The appointment of a guardian or a conservator removes an individual’s right to make decisions for himself and is utilized as a last resort. The execution of medical and financial powers of attorney prior to incapacitation may allow for the avoidance of the expenses associated with a guardianship/conservatorship proceeding. This less restrictive alternative provides effective protection in the event one becomes incapacitated at some time in the future at a much reduced cost.