Guardianship and conservatorship is a special field of law that allows a person to step in and take responsibility for another person in a time of need. The guardian agrees to take on the responsibility of the person, and a conservator is responsible for the estate. They don’t have to be the same person.
Reasons to Seek Guardianship
Minors—Parents can appoint a guardian for a minor child should both parents become unable to care for their child due to illness, injury, or death. The guardian is usually a close family member or friend. In general, guardianships for minors end when they turn 18.
Incapacitated Adults—For vulnerable or incapacitated adults, guardianships can last until death or until the court terminates the legal relationship. In cases of special needs children with severe disabilities, guardianship is necessary after the child turns eighteen since they can’t make their own legal and medical decisions. When there is no family member or friend to step in, a public agency or not-for-profit may also become guardian.
Guardianship requires clear and convincing evidence that the disability substantially impairs your loved one’s decision-making abilities. It can be a complex and time-consuming process. An experienced special needs planning attorney can draft legal documents, determine the best choices for a guardian or conservator, and access medical records evaluating mental and physical conditions.
A guardian or conservator becomes necessary when a person lacks the following capacity:
- Meeting the essential requirements for his health, care, and safety without assistance
- Managing property or financial affairs or providing for their support without assistance
Alternatives to Guardianship or Conservatorship
Guardianship and conservatorship should always be a last resort. Rights and freedoms should not be taken away unless absolutely necessary and come at an emotional and financial cost.
A durable general power of attorney may be a good alternative to guardianship and/or conservatorship. However, the incapacitated person must have planned ahead and signed the power of attorney while understanding what they were doing.
An advance medical directive allows you to appoint someone to make medical decisions for you if you ever become unable to make those decisions for yourself. Even if you have not signed an advance medical directive, Virginia law gives your spouse, children, or relatives the authority to make medical decisions for you.
Britt S. Williams is an estate planning attorney at Schneider & Williams, P.C. who helps create or modify wills and trusts, draft advance medical directives, and establish guardianships. If you feel someone can no longer take care of themselves, call us to discuss your options.
Schneider & Williams, P.C. is a boutique nationwide law firm based in Stuart, Virginia. We specialize in business and estate planning, including asset protection, revocable trusts, special needs trusts, succession planning and mediation, and general counsel. Our firm also helps you with corporate law, including mergers and acquisitions and real estate development and closings. Let us be your go-to firm for a lifetime of legal needs.
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