In the Commonwealth of Virginia, obtaining a guardianship is a complex undertaking and one you should not attempt without a Virginia estate planning attorney to guide you through the process. Navigating the intricate waters of Virginia guardianships requires the knowledge and skill of an estate planning attorney - and here’s why: what you don’t know can hurt you.
Virginia Guardianships Remove Individual’s Rights
Establishing a guardianship legally removes a person’s ability to make decisions for him or herself. This cannot be overstated. If a full guardianship is approved by the Court, a person will lose his right to vote, get married, enter into contracts, make purchases, make medical decisions and a whole host of other decisions most people take for granted. Because of the extreme nature, the decision to enter into a guardianship should be one of last resort.
Guardianships Require Court Proceedings
In order to obtain a guardianship, a person must first petition the Court laying out the reasons they feel are pertinent for the Court to grant a guardianship. If a petition seeks a full guardianship and does not provide sufficient evidence to support a full guardianship, a judge may not grant the petition. Simply petitioning for a guardianship does not guarantee one will be granted.
Only a Judge can Determine if a Guardianship is Necessary
Pursuant to Virginia law, a judge establishes the authority of the guardian and whether one is warranted. Based on the petition and subsequent reports, a judge will determine whether to proceed with a guardianship and to what extent the guardianship should reach.
The Person Subject to a Guardianship has their own Attorney
The person alleged to need a guardian must be provided an attorney to ensure their rights are not being unduly violated and a guardianship is the correct course of action. This attorney representing the alleged incapacitated person is called a guardian ad litem. The guardian ad litem represents the interests of the individual that would be subject to the guardianship. The appointment of a guardian ad litem does not mean this is an adversarial proceeding. Rather, this means the Court is taking precautionary steps to ensure everyone’s rights are properly protected. However, the guardian ad litem has a responsibility to represent the alleged incapacitated person and the proceeding will become adversarial if there is doubt about the person’s incapacity or inability to manage his own personal or financial affairs.
There are Alternatives
Consider a durable power of attorney. This is a less invasive approach to guardianships and still allows the appointed person to make decisions on behalf of the individual. This alternative does, however, require the individual to have capacity to sign over their rights and can be revoked by the individual at any time while he has mental capacity to do so.
Consider a living trust as a vehicle for managing and administering assets when the individual becomes incapacitated. This alternative does also require that the individual to have capacity to agree to the trust so advance planning is required.
Consider limited Virginia guardianships. While this approach is more invasive than a power of attorney or living trust, it is less invasive than a full guardianship. With this approach, only specific rights are removed from the individual. For instance, a limited guardianship may be set up to only take away the financial and medical decision-making rights of a person while still allowing the individual to purchase daily goods and lead an otherwise ordinary life.
Experience You Can Trust
The decision to begin guardianship proceedings is not one to take lightly nor is it one to navigate without the assistance of an attorney. With expertise and years of experience in the field, choosing the right attorney is paramount to ensuring the proper guardianship. Schedule a consult with Virginia guardianships attorney Stephen Thienel today. Mr. Thienel has decades of experience assisting clients in assisting individuals with their estate plans throughout, Maryland, Virginia, and the District of Columbia.
This Blog/Web Site is made available by Stephen Thienel and Thienel Law, LLC for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney-client relationship between you and Stephen Thienel and Thienel Law, LLC. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.