When a Loved One May Need a Guardian or Conservator

Making the call whether or not a loved one needs the assistance of a guardian or conservator can be a difficult and often heart-wrenching decision. Acknowledging that a loved one may no longer be able to take care of themselves in the way that they once did can be a reality that many struggle to accept. However, oftentimes, becoming the guardian or conservator for your loved one is the best thing that could happen to them by improving their quality of life and ensuring that they are physically, emotionally, and financially taken care of.

With a well-crafted Relational Estate Plan®, you lay the groundwork for your loved ones to follow should you ever be put in a position where you need additional support. That way, if you ever need guardianship or conservatorship, they would know who you wanted to serve in those positions.

What Exactly are Guardians and Conservators?

In short, guardians and conservators are individuals who make decisions on your behalf. A guardian is someone appointed by the court and responsible for handling the physical and emotional needs of the adult, including food, housing, medical treatment, and education. A conservator handles the financial affairs of the adult, giving them access to their funds in order to pay bills, purchase goods, handle repairs, and more. The guardian and conservator can be two different people, or they can be the same person. It depends on how you want to manage the responsibility and how the court rules. If you have a preference on whom you would like to serve in these roles, should you ever need them, make sure you include whom you’d like to serve in your Relational Estate Plan®.

[Related Reading: What is the Difference Between a Guardian and a Conservator?]

Guardians and conservators are appointed when the court deems the person in question as incapacitated and can no longer handle these affairs on their own. An example of this is a loved one who has been diagnosed with Alzheimer’s. Because Alzheimer’s can affect cognitive function, your loved one may no longer be able to drive safely, remember their own doctor’s appointments, or know when they need to pay their bills. A guardian or conservator can handle these things and ensure your loved one’s financial and personal well-being.

If you’re concerned about a loved one who may benefit from a guardianship or conservatorship, knowing where to start can ease your mind. Here are some steps you can take to begin the process:

1. Contact an Attorney

Before you begin dealing with the court, your first step should always be to contact an attorney. An experienced Elder Law firm will be able to help you more thoroughly understand the process and the implications of the process. For example, becoming the guardian or conservator for a loved one could mean that they are not allowed to vote, get married, sign documents, or make medical decisions. Speaking with an attorney can help to guide you in the right direction. If you’re concerned about your loved ones finding a good attorney to assist with the process, consider leaving the contact information for an Elder Law attorney with your Relational Estate Plan! It could ease the minds of your loved ones later on.

Once you understand the full grasp of the decision and you want to move forward, an experienced Elder Law attorney knows how to work with the court to make the process as easy and stress-free as possible because they have inside knowledge of how stressful it can become.

2. File a Petition with the Court

Once you’ve hired an attorney to help, the process of filing a petition with the court begins. The person wishing to obtain guardianship or conservatorship must petition the Virginia Circuit Court system alleging that there is an incapacitated person who can no longer manage their own affairs. When you file the petition, the alleged incapacitated person is called the respondent, and the petition must be filed in the Circuit Court in the county where the respondent lives.

In essence, you are asking the court for permission to start managing the respondent’s affairs so that you can do what’s best for them. You want them to be safe, healthy, and financially secure, and because of this, you’re asking the court to step in and ensure that’s what will happen.

3. Attend a Hearing

Once you file the petition with the court, you may be asked to attend a hearing to speak before the Court and give evidence as to why the respondent is no longer able to handle their personal or financial affairs. Should the Court rule that the respondent can no longer manage their own affairs, then the Court will appoint a guardian or conservator. If you have petitioned for either of these roles, it is at this time that you will be named.

Navigating the court system to become a guardian or conservator can feel overwhelming even to the most experienced of planners. The court system can be confusing, and trying to understand how to best care for your loved one may make you feel like this process is an insurmountable wall to climb. But you don’t have to do this alone.

If you have found yourself in the position of needing to obtain guardianship or conservatorship over a loved one, contact us here at Relational Estate & Elder Law. We’re happy to walk alongside you as you work your way through the guardianship and conservatorship process. If you’re interested in working with our team, contact us today!

 

Joshua E. Hummer, Esq. is the founder of Relational Estate & Elder Law, and he has been a practicing attorney for over 15 years. While experienced in many parts of the law, Josh specializes in estate planning, estate administration, and elder law. He is licensed in both Virginia and West Virginia. Josh’s passion lies in helping people gain peace of mind about the future through holistic legal planning. When he isn’t meeting with clients or crafting legal documents, Josh enjoys spending time with his lovely wife, Jill, and their four vibrant children.

 

Disclaimer: The information you obtain in this post is not, nor is intended to be, legal advice. This blog shares general best practices when navigating Virginia or West Virginia law, but you should consult an attorney for advice regarding your individual situation.