FAQ: Guardianship and Conservatorship
Q. What is the difference between an Agent under a Power of Attorney and a Guardian or Conservator appointed by a judge?An Agent is appointed by a Principal, under a Power of Attorney, to act on behalf of the Principal when the Principal is disabled.
A judge appoints a Guardian to make life-style decisions, including medical decisions, for a disabled adult. A judge appoints a Conservator to handle a disabled adult’s finances. In most cases, a judge will appoint a Guardian and a Conservator when the incapacitated person has failed to appoint an Agent.
A Judge can appoint a Guardian and/or Conservator to act on the behalf of an adult who has been mentally disabled since childhood and is therefore incapable of drawing up Powers of Attorney.
Q. How is a Guardian and a Conservator appointed?In Virginia, Guardians and Conservators are appointed by a Circuit Court Judge. Any person over 18, not just a family member or a relative, can Petition the Court, or request, that a Guardian or a Conservator be appointed.
Q. What must the Petitioner prove in order to have a Guardian and a Conservator appointed?The Petitioner must prove to the Circuit Court Judge that the person the Petitioner believes needs a Guardian and a Conservator is incapacitated as defined by Virginia law.
Q. What is a Guardian ad Litem?When a Petition is filed, the Circuit Court Judge is required to appoint a qualified attorney, called a Guardian ad Litem, sometimes referred to as a G.A.L. The G.A.L’s responsibility is to determine whether the allegations in the petition are correct and whether the person the Petitioner wants to be appointed Guardian and/or Conservator is the proper person to serve. The Guardian ad litem must advise the alleged incapacitated person as to what rights that person will lose if judged incapacitated and in need of a Guardian and/or Conservator. The G.A.L must also advise the alleged incapacitated of his right to challenge the Petition