At some point in many people’s lives, they become unable to watch over their personal or financial care. In these situations, it may become necessary for someone to step in and assume certain responsibilities of care for that person. Some states call them guardians, others conservators. These individuals are charged with ensuring an incapacitated person’s medical, financial and other needs are met. With proper planning with an estate-planning attorney, guardianships can be avoided.
Each state has laws regarding conservatorship and guardianship for minors and incapacitated adults. The laws vary slightly by state. Some states use the term guardian to refer to the duties of a guardian and a conservator. However, Virginia does not use the terms interchangeably. Conservators and guardians have very distinct roles and responsibilities.
Before discussing how you can avoid a conservatorship or guardianship, it helps to understand the difference between the two terms.
What is Guardianship in Virginia?
Under Virginia laws, a guardian is a person who has the responsibility of overseeing another person’s physical care. In some states, this court ordered responsibility is referred to as conservatorship of the person because it relates to decisions regarding non-financial matters. To be awarded guardianship, you must prove to the court that the person needs to be protected and cannot care for himself or herself. The person to be protected is referred to as a ward or protected person.
It is assumed that children require a guardian until they reach 18 years of age. An adult may need a guardian because of an incapacitating psychological disorder or physical illness that impairs his or her ability to make sound and safe personal decisions. The guardian is directed by the court and granted authority to make these decisions for the protected person.
It should be noted that a guardianship significantly impacts a person’s freedoms and rights. The guardian has the authority to make decisions regarding living arrangements, medical care, end-of-life decisions, owning a firearm, religious affiliations, voting, marriage, and other personal decisions that most of us take for granted each day.
What is Conservatorship in Virginia?
Conservatorship refers to a person’s financial matters. Whereas guardianship grants a person control over non-financial, personal decisions, conservatorship grants control over financial decisions. The authority over financial matters is sometimes referred to as guardianship of the estate.
As with a guardianship, a conservator has broad powers of the ward or protected person’s finances. Examples of decisions a conservator can make or actions he can take include:
· Protecting assets and income
· Opening and closing financial accounts
· Paying bills and living expenses
· Buying and selling real estate and personal property
· Managing income and income from assets
· Investing money and managing investments
· Preparing and filing tax returns
To ensure that a person is not using the ward’s money or assets for personal gain and to reduce fraud and mismanagement, conservators must file annual reports with the court. In addition, conservators must obtain court approval before transferring or selling any major assets.
A person can apply to be both a guardian and a conservator if there is a need for both. The court may appoint one person to serve in both capacities or appoint a different person for each role.
How Can You Avoid a Guardianship or Conservatorship?
As you can see, a guardianship or conservatorship gives a great deal of power over your life and finances to another person. Even though an applicant for a guardian or conservator must prove to the court that you need protection, most people do not want the court intervening in their lives to this extent. Furthermore, the person the court appoints as your guardian or conservator may or may not be someone you would choose to make these decisions for you.
There are several ways you can avoid a guardianship or conservatorship in Virginia. The best way is to have a comprehensive estate plan that includes documents to protect yourself if you become incapacitated for any reason. By utilizing certain documents, you can choose who you want to have decision-making power for you as well as set some terms and conditions this person must follow. Some legal forms you may want to consider include:
· Durable Power of Attorney
· Revocable Living Trust
· Healthcare Durable Power of Attorney
· Living Will
· Advance Medical Directives
· Appointing a Protective Payee or Representative Payee
You may also appoint someone as your guardian and conservator in the event you need protection. By taking steps now, you can be in control of these choices instead of someone else and the court making these decisions for you.
If you have questions about conservatorships and guardianships, schedule a consult with estate-planning attorney Stephen Thienel today. Mr. Thienel has decades of experience assisting clients with their estate-planning needs throughout, Maryland, Virginia, and the District of Columbia.