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Guardianship (Important Definitions)

I am starting a series of Articles on Guardianship in Virginia that I hope will serve as a resource for individuals and families educating themselves on guardianship and conservatorship.

Guardianship is very much a state statutory issue. All states have guardianship statutes but although they all have certain commonalities procedurally they can differ a great deal.

We start with some basic concepts and definitions. Guardianship and conservatorship is a court determination. No individual other than a judge appoints a guardian and/or conservator. Individuals can and should appoint an agent under a power of attorney and medical power of attorney as a substitute decision maker to avoid the appointment of a guardian and or conservator. But when we speak of a guardian we are talking about a state action through the courts.

A guardian refers to the person appointed to make the personal decisions about an incapacitated person such as decisions about health, therapeutic treatment and residence. Placement in a residential setting such as group home, assisted living and nursing facility is made ultimately by the guardian.

A conservator refers to the person appointed to manage the estate and financial affairs of the incapacitated person. The conservator must gain control over the person’s assets and income and make yearly reports to the court through the commission of accounts as to how the person’s income was spent and what expenses were paid by the conservator.

Although there can be separate persons appointed for each role, the guardian and conservator can be and frequently are the same person.

The other major definition is incapacity. The word incapacity is misleading in that capacity is a fluid subject and can mean different things depending upon what the person is doing. There are different legal definitions of capacity to make a will, to sign a contract or to drive a car. Likewise, there is a statutory definition of incapacity as to when a person needs a guardian and/or conservator appointed by the court. The definition is a triggering mechanism as to when the state has authority to appoint a substitute decision maker.

To paraphrase the Virginia statutory definition of incapacity it is when a person has been adjudicated to be incapable of receiving and evaluating information effectively or responding to people events or environments such that they cannot provide for their own health, care or safety or manage their property to provide for their self-support without the appointment of a guardian and/or conservator. The statute goes on to say that poor judgment alone is not proof that a person is incapacitated.

One final point. Parents are always the natural guardians for their children until they turn 18. Guardianship for a developmentally disabled child is not needed until the child turns 18. However, parents of disabled children can file a guardianship petition when the child turns 17 and six months so that at age 18 the guardianship is in place.

Community Presentations in October for Ed Zetlin
Edward Zetlin Law will be an exhibitor on Saturday, October 8, 2016 for the 12th Annual Walk for Autism by the Autism Society of Northern Virginia. The event takes place at Prince William County Fairgrounds - 10624 Dumfries Road, Manassas, VA. For more information, contact ASNV at 703-495-8444 or go to http://www.asnv.org.

Contact us at (703)379-0442; ed@zetlinlaw.com


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