When someone is incapable of managing their own care and finances, legal guardianship or conservatorship may be necessary. One question many people have is how to determine whether applying to have legal control over their family member’s affairs is the right decision for them. Finding solutions for the incapacity issues of a loved one is not a decision to take lightly. Speaking to a knowledgeable professional about the specific details of your and your loved one’s situations can help you identify the best course of action. Often these are difficult decisions, and working with an attorney who is well-versed in Virginia laws can help. Let the Virginia Beach guardianship lawyers at Montagna Law walk you through your options. The attorneys at our law firm can help you to determine which steps to take to start caring for your loved ones. Call us at 757-622-8100 or fill out our online contact form to discuss your best options.
The terms guardianship and conservatorship can be confusing, but there are distinct differences between the two legal arrangements. Below, we outline the specifications of each title and how they differ.
Guardians have several duties regarding the incapacitated adult. In their role, they are responsible for the person’s personal affairs, including:
Before pursuing the route of legal guardianship, it is important to remember it can dramatically impact your family member’s life and take away some of their rights. This might include their ability to vote, sign apartment leases or deeds, make medical decisions, or even get married.
Sometimes, conservatorship might be a better course of action than guardianship. Conservators oversee and are responsible for the financial affairs of an incapacitated adult. The court grants them the legal authority to manage the person’s estate, assets, income, and other financial affairs, including:
Another primary responsibility is filing annual accountings with the Commissioner of Accounts. These documents show any money or property received, along with any disbursements made on behalf of the incapacitated individual. It is important to understand that unless an appointed guardian or conservator acts negligently, they are not liable for anything the incapacitated individual does. Neither guardians nor conservators are expected to spend their own money overseeing the financial and personal affairs of the person they are helping. Additionally, one person can serve as both guardian and conservator, or two separate parties can hold the roles.
Knowing when to pursue guardianship can be a difficult decision to make. Consulting with a knowledgeable Virginia Beach attorney can help you make the tough choices.
Parents are the natural guardians of unmarried minor children and assume child custody. If one parent dies or otherwise abandons the child, the other parent is automatically granted guardianship. If both parents are deceased or otherwise unable to be the child’s guardian, they can appoint another individual to serve in this role in their will. These individuals are referred to as testamentary guardians. Children over the age of 14 may select a guardian of their choosing. The Virginia court will determine the suitability of the person they choose. In other cases, guardianship may become complex, especially if you want to assume guardianship of a loved one but their parents did not designate you as a guardian. When dealing with the guardianship of minors, it is always a good idea to speak with a guardianship attorney serving Virginia Beach families.
If your loved one is an adult who has a disability, you will need to go through a process to obtain guardianship. This will involve filing a petition to demonstrate your family member is incapacitated and is unable to make certain decisions for themselves.
Family members often step in to help their aging loved ones with financial matters, personal care, or end-of-life decisions. Sometimes, seniors develop memory issues or suffer other health issues (e.g., stroke, accident, etc.) that prevent them from making safe and sound decisions about their assets or personal well-being. A family member will often assume guardianship if their loved one lacks a power of attorney. Sometimes, it may be discovered that a third party is taking advantage of the senior by assuming inappropriate or harmful influence. In other cases, the senior individual may be prone to fraud, and having someone step in can help protect their interests. People who often assume guardianship over seniors include spouses, domestic partners, family members, and close friends.
If you are considering obtaining legal guardianship in Virginia Beach for your loved one and are leaning towards it being the right decision, there are several steps to take. In some cases, an agency may also initiate the need for guardianship or conservatorship. Talk this over with an attorney if this is the case.
The first decision is to decide if you want to pursue guardianship or conservatorship. Next, file a petition with your local Virginia Circuit Court to allege your loved one is an incapacitated Virginia resident that needs a guardian or conservator to manage all or some of their affairs.
You are the petitioner, and the person who is allegedly incapacitated is referred to as the respondent in court papers. After you file your petition, you will receive a hearing date. During the hearing, the court will listen to evidence as to why guardianship or conservatorship is needed. The hearing will also determine who should serve in each role should the court decide it is required. Family members also will receive notification of the hearing and petition.
The respondent will receive notice of the hearing, along with information regarding their rights. They can choose to take action, including the right to a jury trial, subpoena witnesses, and cross-examine witnesses. Under Virginia law, the court is obligated to appoint a guardian ad litem for the respondent. This is an attorney representing the best interests of the respondent. The guardian ad litem may or may not be in favor of guardianship or conservatorship.
An appointed guardian arrangement can vary, depending upon the specific circumstances. In some cases, guardianships or conservatorships are only short-term. In other cases, they may assume responsibility for a specified period of limited time or for the long term. The court will determine the appropriate length of time a guardianship or conservatorship is necessary to attend to the incapacitated individual’s personal, financial, and legal matters.
Before pursuing guardianship or conservatorship of your family member or close friend, it is crucial to understand fully the responsibilities you will be assuming. Serving in this capacity can be time-consuming and tiresome. It may cause stress. It may also put a strain on your relationship with your loved one. If the incapacitated individual is fighting the idea, or the arrangement might negatively impact your relationship, you may want to find another individual to take the role to mitigate conflict. In some instances, taking on one or both roles is the best course of action when protecting your loved one. There may be other options as well. Our Virginia Beach attorneys can review possible decisions with you and help you understand which suits your situation. They can also guide you through any potential legal matters or complications arising when taking on one or both of these important roles.
The peace of mind you receive knowing that you or another designated person you trust will serve within a Virginia guardianship or conservatorship for your loved one is important to us. The caring and compassionate estate planning attorneys at the law offices of Montagna Law are here to help you do what is best for you and your loved one. When you have a question or need legal representation regarding elder law, family law, trusts, wills, probate, or another legal issue, having a strong legal team by your side is beneficial. Guardianship issues can get complex, and the Virginia Beach attorneys at Montagna Law can help you navigate the system and get the care your loved one needs. We value the client relationships that we build with transparency, dedication, and determination. We proudly offer affordable legal advice to our Hampton Roads clients to help them obtain a solution or resolution for their legal issues in several different practice areas. To schedule an appointment to get an initial consultation with one of the knowledgeable attorneys at Montagna Law, contact us today at 757-622-8100 or through our convenient online contact form.
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Jon Montagna received a Bachelor of Arts in Literature from American University in Washington D.C. and graduated Cum Laude from the University of Miami School of Law in 1999. Jon practices law in the Hampton Roads Virginia area.