Guardianship Trust
Our team has decades of experience helping clients in the Hampton Roads region.

Guardianship Trust Attorneys in Norfolk

If you have minor children or adult children who are incapacitated, naming a guardian or conservator in your will could limit the court’s involvement. If you do not name a guardian or conservator, it will be left up to the court to name someone. While the court will choose this guardian in the child’s best interest, it might not be who you envisioned caring for and making the legal decisions for your children.

As such, planning ahead is an excellent course of action to protect your children’s well-being, regardless of age. Contact our Norfolk guardianship trust attorneys to see how we can help you protect a minor aged or incapacitated family member.


No matter what life throws at you, we can help you solve your legal problems.

Call (877) 622-8100 or complete the online contact form to request a free consultation.


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What is the Difference Between a Guardian and a Conservator in Virginia?

If an adult cannot care for themselves, a court can appoint a guardian or a conservator. However, if you are responsible for an adult child who has mental or physical limitations, you can also name a guardian or conservator in your will. There are differences between the two roles, and knowing what these are can help you determine what is truly needed and what will be most beneficial.

Guardianship

A guardian is a designated individual responsible for the personal affairs of another. Guardianship entails making essential decisions concerning the health, support, care, safety, treatment, education, and living arrangements of a child or incapacitated person.

Conservatorship

A conservator is an appointed individual with the legal authority to manage an incapacitated adult’s estate and financial affairs.

One individual may serve as both guardian and conservator, or two people can divide the roles. The court will often appoint a guardian ad litem to help in the decision-making process. This appointed individual will provide the court with independent views based on investigations and interviews.

However, there are certain steps and requirements that an individual must meet before becoming a guardian or conservator of an adult in Virginia. If someone you know needs to establish a guardianship or conservatorship, or if you are attempting to become one yourself, seek legal advice to help.

Choosing an Option that is Less Restrictive Than a Guardian or Conservator

While guardianships and conservatorships are common, there are several different options that you can choose that are less restrictive than these main two. You might select these other options for various reasons depending on your circumstances.

Durable Power of Attorney

A durable power of attorney is a lawful document that lets someone choose another person to make legal and financial decisions if they become incapacitated. Such a document is beneficial for those who can currently make life decisions but want protections in place if they cannot do so at some point.

Durable Medical Power of Attorney

elderly woman receiving help from another woman with her paperwork

A durable medical power of attorney identifies who can make medical decisions for a person should they become incapable of doing so for themselves. This option is usually a good choice for those who can make decisions currently but may experience a personal injury or additional health care issues in the future.

Limited Guardianship

A limited guardianship outlines the decisions the appointed guardian can make and leaves the rest up to the incapacitated adult to handle. For example, you may determine that the incapacitated adult needs help with making medical decisions but not with employment or residential requirements. The limited guardianship permits the special needs adult to retain some independent rights while still receiving proper medical care.

Limited Conservatorship

A limited conservatorship designates what financial decisions the appointed conservator can make on behalf of another. Such an option is beneficial when only certain areas of concern exist, but the incapacitated adult can otherwise make decisions independently. For instance, the adult in question may be able to take on daily transactions but need help managing investments.

If you are unsure which type of protection you need to provide for your loved one, our guardianship lawyers can help. We can also assist with efficient estate planning, complications relating to child custody arrangements or child support, or any other legal matters under family law or probate you may have. Call our Norfolk law firm today to schedule an initial consultation.

Why Name a Guardian or Conservator in Your Will?

When it comes to your minor child or special needs adult child, you know what is best for them and who can step in and help if you should pass away or become incapacitated. For this reason, it is essential that you name a person to become the guardian or conservator in your will.

By doing so, you will know that your minor child will be cared for, or your adult child who cannot care for themselves will be provided with continual care by someone you trust. This naming in your will can also bring peace of mind.

How is Incapacitation Determined for Adults?

Before determining who should serve as a guardian, conservator, or another type of support, it is essential first to understand how incapacitation is determined in adults. Under Virginia Code, an incapacitated person will be judged to be so by a court and must meet one of the defined qualifications.

The first qualification is that the adult cannot adequately care for their health and safety on their own and require the protection or assistance of a guardian. The second qualification that can identify an incapacitated adult is the inability to manage their finances and property without help. An incapacitated person does not have to be in a nursing home or other such care facility to qualify.

How Can You Terminate a Guardianship or Conservatorship in Norfolk, Virginia?

man tearing a contract in half

A few methods are available if you need to terminate a guardianship or conservatorship. The first occurs upon the death of the incapacitated individual. Such services of the providers are no longer required and will be terminated.

A second termination method is that the guardianship or conservatorship role has expired or concluded per the initial appointment guidelines.

Lastly, the incapacitated individual no longer requires the assistance of another serving in a guardianship or conservatorship role. To terminate under this method, the previously determined incapacitated person must file a petition with the circuit court. The termination request is based on a claim that that person no longer meets Virginia’s statutory definition of a person in need of another’s assistance. At this point, the judge will decide whether to terminate or not, depending upon whether the judge determines that the petitioner is capable of handling personal and financial affairs.

How Will You Care for Your Children When You Are Gone?

While it is not pleasant to talk about circumstances that will take you away from your minor children or incapacitated adult children, it is an essential conversation to have to develop a plan that will provide you with peace of mind. A guardianship trust attorney with the Norfolk law office of Montagna Law can help you determine what is best for your family and help you make legal arrangements to care for your children when you are gone. We value our relationships with our clients and will keep your matters confidential.

The attorneys with the law offices of Montagna Law have years of experience in Virginia guardianship issues, custody cases, and other family law matters. When you need help, we are here to provide legal representation and legal services for residents throughout the Hampton Roads area, including Norfolk, Chesapeake, Virginia Beach, Portsmouth, Suffolk, and Newport News. Call our office today at 757-622-8100 or submit the online contact form to discuss your legal issue and schedule a consultation.

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Norfolk, Virginia 23510-2408
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Written By Jon Montagna

Attorney

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.