Sometimes a person becomes legally incapacitated, and cannot independently make decisions about finances, medical care, or other important life activities. It may be due to injury or diseases associated with aging, or it may be a genetic or other condition that affects a developing child. In such situations, the appointment of a guardian or conservator may be necessary. If you believe a family member or loved one needs this kind of assistance, Gentry Locke attorneys can petition the court to appoint you or another trusted person as a guardian or conservator.
It should be noted that poor judgment is not incapacity. A person is legally incapacitated if a court determines the person to be “incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to:
- Meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian, or
- Manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator.” (Va. Code Ann. § 64.2-2000)
A guardian (dealing with health and safety) or a conservator (dealing with finances or property) can be granted broad powers or may have limited power to decide specific issues. Each situation is unique. The scope of the guardian’s or conservator’s power is set by Virginia law and the court order specific to the individual. Guardians and conservators have a fiduciary responsibility to the incapacitated person, meaning they must act with the utmost loyalty and care—their actions must be above reproach. The actions of a conservator are monitored by the local Commissioner of Accounts, through periodic filings of accounting documents.
If the person is not found to be legally incompetent, alternatives are available to provide assistance. General or durable powers of attorney, advance medical directives, trusts and other documents can be used to appoint people to help with specific tasks or issues.
Consult with the attorneys who are listed on this page to learn what options may best serve your situation.Have questions? Contact us.