Robin (Rob) K. Kutz

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Adult Guardianships

Newport News Estate Attorneys - Virginia Guardianships Law

If there is no durable power of attorney or an advanced medical directive in place, who takes care of those in Virginia who are no longer able to do so for themselves?
A: The court-appointed Guardian and Conservator.

Unfortunately, many Virginians fail to plan for the possibility of their own disability or incapacity by putting into place a well-drafted durable general power of attorney and advance medical directive as part of their estate plan. As a result, when something happens that makes them unable to attend to their own personal and financial affairs, or to make medical decisions for themselves, their loved ones cannot act for them without becoming their court-appointed guardian and conservator. As part of its elder law practice, Miller, Walsh & Kutz assists families in obtaining guardianship and conservatorship for their loved ones living on the Peninsula, whether in Newport News, Hampton, Williamsburg and James City County, York County, Gloucester County or other local jurisdictions.

Guardianship and Conservatorship law also pertains to special needs children who become adults at age eighteen. When these special needs adults cannot care for themselves, someone—generally their parents—must petition the court to become the child’s guardian and, when there are financial assets involved, conservator. Only then may parents continue to make the decisions they have been accustomed to making throughout their son or daughter’s childhood.

GUARDIAN OF THE ESTATE OF A MINOR

In Virginia a special type of conservatorship called “guardian of the estate of a minor” is used when someone under the age of eighteen suddenly receives money or other property, usually through inheritance from a deceased relative who failed to plan for the possibility that a minor would inherit, or when a young parent dies unexpectedly without a Will. At Miller, Walsh & Kutz we advise the minor’s parent or guardian whether to seek court appointment as guardian of the minor’s estate and we will petition the court in those cases where it is advisable to do so. We then will assist the guardian in managing the minor’s estate and accounting for the funds under the supervision of the Commissioner of Accounts.

WHAT IS THE DIFFERENCE BETWEEN A GUARDIAN AND A CONSERVATOR?

A guardian is the person appointed by the court who is responsible for the personal affairs of an incapacitated person, including the responsibility for making decisions regarding the person’s support, care, health, safety, habilitation, education, and therapeutic treatment, and if not inconsistent with an order of commitment, residence. An “incapacitated person” means an adult who has been found by the court to be incapable of receiving and evaluating information to such an extent that the individual lacks the capacity to (a) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (b) manage his property or financial affairs without the assistance or protection of a conservator. The conservator is also appointed by the court, and is responsible for managing the estate and financial affairs of an incapacitated person.

WHAT IS THE PROCESS FOR OBTAINING GUARDIAN & CONSERVATORSHIP?

You begin the guardianship and conservatorship process in Virginia by filing a petition in the circuit court where the incapacitated person (the “Respondent”) resides. The court requires as part of the petition an evaluation by a physician or licensed clinical psychologist that provides a medical opinion as to the incapacity of the Respondent. The court appoints a specially trained attorney called a Guardian ad Litem to inquire into the matter on behalf of the court and to insure that the Respondent’s rights are protected. The Guardian ad Litem files a report with the court and appears at all court proceedings. The incapacitated person may or may not appear as well.

Once the Guardian ad Litem’s report has been received, the court will hold a hearing to determine whether a guardian and/or conservator should be appointed and, if so, who should be appointed. At the conclusion of the hearing the court issues an Order appointing the guardian and, if necessary, the conservator. The guardian/conservator then must qualify before the Clerk of Court.

Guardians generally qualify with a nominal bond that does not require surety (insurance to back up the bond). Conservators, however, must post bond with surety in an amount generally between one and a half to two times the amount of the incapacitated adult’s financial assets. Because the insurance company issuing the surety bond wants to be sure the conservator is a good risk, the insurance company will require a credit check. Persons desiring to be appointed conservators must have very good credit to qualify, so those without very good credit, especially those who have gone bankrupt, generally cannot obtain a surety bond. Miller, Walsh & Kutz assists their clients in determining whether they will qualify for a surety bond before submitting their client’s petition.

After qualification, guardians and conservators must file periodic reports. The guardian files annual reports with the Department of Social Services of the city or county in which the incapacitated adult resides. The first report is due six months after qualification. The conservator files an inventory of the incapacitated adult’s assets and then files annual accountings to the Commissioner of Accounts. Again, the first accounting is due six months after qualification.

Administering the estate of an incapacitated adult as conservator is a specialized service involving a high degree of trust as well as personal attention to detail. The conservator is responsible and liable for the collection, preservation and accounting of the incapacitated adult’s assets; the payment of all taxes, debts and other obligations of the incapacitated adult; and the distribution of the assets upon the incapacitated adult’s assets according to his or her Will or State law when there is no Will. The attorneys of Miller, Walsh & Kutz have years of experience stand ready to assist any conservator who desires assistance in meeting their statutory responsibilities.

VIRGINIA GUARDIANSHIP LINKS:

VIRGINIA DEPARTMENT FOR THE AGING

http://aging.state.va.us

SUPREME COURT OF VIRGINIA:

http://www.courts.state.va.us/incap/guardianinstruct.pdf
http://www.courts.state.va.us/incap/conserincapadults.pdf

VIRGINIA GUARDIANSHIP ASSOCIATION:

http://www.vgavirginia.org/default.asp

NATIONAL ACADEMY OF ELDER LAW ATTORNEYS:

http://www.naela.org

NATIONAL SENIOR CITIZENS LAW CENTER:

http://www.nsclc.org">

AGING IN STRIDE:

http://www.aginginstride.org

CAREGIVING INFORMATION:

http://www.agingparents.com

NATIONAL FAMILY CAREGIVERS ASSOCAITION:

http://www.nfcacares.com