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Incapacity Frequently Asked Questions

Whether they believe that “it” won’t happen to them or they don’t want to face the fragility of life, many people fail to plan for the possibility of their own disability or incapacity. Sudden injury or illness can render a person unable to manage personal and financial affairs, unable to make medical decisions, and unable to execute legal documents.

If the proper legal documents have not been executed in advance, family and friends may not be able to act on behalf of a person who has become incapacitated. If there are no properly drafted and executed legal documents, the family may have to petition the court to have the individual adjudicated incapacitated and to request the appointment of court-supervised fiduciaries.

In the absence of a durable general power of attorney authorizing a designated agent to make financial and legal decisions, it likely will be necessary for family to seek the appointment of a Conservator of the assets of the incapacitated individual. Similarly, in the absence of an advance medical directive designating an agent to make medical decisions, it may be necessary to seek the appointment of a guardian of the person.

The parent(s) of a special needs child who is turning eighteen must petition the court to become the child’s guardian and, when there are financial assets involved, conservator. Once the child turns eighteen and is legally considered an adult, even though the child may be unable to make his or her own decisions, parents are unable to make the decisions they have been accustomed to making throughout their son or daughter’s childhood unless they have been appointed by the court as fiduciary. A recent change in state law allows parents to petition the Court for guardianship and conservatorship within the six months prior to the child’s eighteenth birthday in order to avoid a lapse in their ability to care for the child.

The attorneys at White & McCarthy have the experience to serve in all areas of guardian and conservator proceedings. We regularly represent families and facilities in securing the appointment of a guardian and conservator for incapacitated individuals, serving as guardian and conservator, and accounting for the funds under the supervision of the Commissioner of Accounts.

In addition to the typical powers granted to a guardian or conservator, in many cases, the efficient administration of the estate of an incapacitated adult requires the authority to conduct estate, Medicaid, and special needs planning. We have the experience necessary to recognize the need for these additional powers and to advocate for their authorization. In addition, we represent individuals alleged to be incapacitated and therefore at risk of losing their individual rights. We also serve as court-appointed guardian ad litem for individuals alleged to be incapacitated. As a court-appointed guardian ad litem we investigate the individual’s living situation, medical records, family relationships, and other applicable information and advocate for what is in the best interest of the alleged incapacitated individual.

Frequently Asked Questions:

What does “Incapacitated” mean?

An “incapacitated person” is an adult who has been found by the court to be incapable of receiving and evaluating information to such an extent that the individual lacks the capacity to (a) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (b) manage his property or financial affairs without the assistance or protection of a conservator.

It is critical to remember that once an individual is determined to be incapacitated and a guardian and conservator are appointed, the incapacitated may lose many essential rights, including the right to vote, the right to get married, the right to sign contracts, and the right to make medical decisions. The law requires the Court to consider less restrictive alternatives prior to implementing full guardianship

What is the difference between a Guardian and a Conservator?

A guardian is the person appointed by the court who is responsible for the personal affairs of an incapacitated person, including the responsibility to make decisions regarding the person’s support, care, health, safety, habilitation, education, therapeutic treatment, and residence.

A conservator is also appointed by the court and is responsible for managing the estate and financial affairs of an incapacitated person.

What is a Guardian of the Estate of a Minor?
A “guardian of the estate of a minor” is a special type of conservatorship used in Virginia when a person under the age of eighteen receives money or other property, often through an inheritance.