When someone becomes incapacitated or disabled due to aging, injury, or illness, provision needs to be made so that their loved ones have the legal right to care for and make decisions for them. But how does this happen? If you become incapacitated, who will take care of you, and how do they get the legal permission to do so?

There are two main ways someone else can manage your care if you are not able to care for yourself: by obtaining legal guardianship, or by using an incapacity plan. Of the two, we have seen that using an incapacity plan is almost always the better option for families. Creating an incapacity plan requires some forethought and work on your part, but in the long run, it puts both you and your loved ones in a better position if you have a medical crisis. Let’s look at what both legal guardianship and planning for incapacity are and how they work.

Legal Guardianship of an Adult: What is It?

Legal guardianship is a legal relationship between a guardian and a ward.  You may know that minor children need guardians, as do many people with disabilities. In some cases, when a fully functioning adult experiences a medical crisis, they become permanently incapacitated, and someone else must obtain legal guardianship to care for them.

Once a person obtains guardianship of someone else, they are given legal authority to make decisions on behalf of their ward. The guardian has the legal responsibility to ensure the ward’s safety, welfare, and best interests, and they may be authorized to make decisions related to their education, medical treatment, and other important aspects of their life.

How to Obtain Legal Guardianship in Virginia or West Virginia

While legal guardianship is a necessary provision for some people, obtaining legal guardianship of someone else is an extensive process. The courts are very careful before they put total control of someone into another’s hands. This helps prevent potential abusers from obtaining guardianship and taking advantage of their ward. Here is how the process typically goes:

  • First, a medical doctor must write a letter stating that someone is not competent or is incapable of taking care of themselves.
  • Once this report is filed by the physician, the person hoping to obtain guardianship must file a lawsuit.
  • A judge appoints an independent attorney to represent the person with disabilities and investigate their situation.
  • The attorney then files their own report stating whether they believe their client needs a guardian.
  • The court sends Notice to all the closest family members of the hearing date. This is their opportunity to show up and object if they believe the person does not need a guardian, or if they think the person trying to obtain guardianship has heinous intention.
  • Finally, the court decides whether the person is competent and what kind of assistance they need. A guardian is appointed for their everyday care, and a conservator is appointed to assist them with their finances.

[Related Reading: What Is the Difference between a Guardian and Conservator?]

  • After being appointed, the guardian and conservator must apply with the court and post a bond.
  • Once guardianship is granted, the guardian and conservator must file annual reports that prove they are acting in the best interests of their ward.

Problems with Obtaining Legal Guardianship of an Adult

But what about those who become permanently incapacitated due to illness, aging, or injury?  How does legal guardianship work when one goes from a fully functioning adult to being indefinitely incapacitated? Legal guardianship in this case becomes more difficult. Though guardianship may be necessary in the long-term, it is not easy to obtain and implement it quickly in a medical crisis. We recommend that everyone plan for incapacity, rather than waiting until they are in a situation where their family is forced to obtain legal guardianship.

What is an Incapacity Plan, and How Does it Work?

By combining several legal and practical documents, you can create an incapacity plan that will ensure your loved ones will know what to do if you cannot care for yourself. If you want to create an incapacity plan, it is crucial that you do so now, because once you are incapacitated there is no way for you or anyone else to put these documents together. We recommend you include the following documents in your incapacity plan:

Financial Power of Attorney: This document allows you to authorize someone else to make financial decisions for you. This person is referred to as your financial agent.

Advance Medical Directive: This document allows you to select which types of medical care and treatment you want if you become incapacitated. It also allows you to designate a medical agent and empower them to make decisions for you if you are unable to do so yourself.

Estate Plan: This plan is usually made up of several documents, such as trusts and wills, in which you articulate instructions for how your assets (your estate) will be distributed and who your beneficiaries will be when you die. If you never regain capacity before your death, your estate plan will tell your loved ones what your wishes are, and how to implement them.

Obtaining Legal Guardianship vs. Planning for Incapacity

As you can see, obtaining legal guardianship is no simple task. By taking the time now to plan for incapacity with a power of attorney, an advance medical directive, and an estate plan, you can make life much easier for you and your loved ones should you experience a debilitating health crisis. They will be able to care for and make decision for you when you need them most.

[Related Reading: How to Plan for Incapacity]

Conclusion

In some cases, obtaining legal guardianship is the right route for families, particularly when their loved one has known and ongoing disabilities that will require care throughout their lives. However, because it is a long process, is expensive, and, at times, has the potential to cause family conflict, obtaining guardianship is not ideal when a crisis happens. Plan for incapacity now, so that you and your loved ones can have peace of mind about the future.

 

If you have questions about who will take care of you should you become incapacitated, call us today! We are happy to discuss more about both incapacity plans and legal guardianship with you.

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.

 

Joshua E. Hummer, Esq. is the founder of Relational Estate and 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.