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Guardianships &
Conservatorships

 

When loved ones becomes incapacitated and are unable to make personal and financial decisions for themselves, an agent named under a power of attorney and medical power of attorney can step in and make decisions.  However, sometimes a person is incapacitated and has never signed powers of attorney.   Other times, a person may have signed those documents, but becomes impaired to such an extent that they don't understand they need help and actually prevent their agent from helping them. Under these facts, it will become necessary for someone to petition the circuit court to become the guardian and conservator of the incapacitated adult.

 

The terms used in Virginia are guardian, which means the person who will make your personal decisions such as where you live and what kind of medical treatment you receive, and conservator, which means the person who will control your finances.  The process starts with the filing of a petition in the circuit court.  Along with the petition, you must also file a medical evaluation which supports your allegation that the person has become incapacitated.

 

Once the petition is filed, the court appoints a guardian ad litem, who is an attorney appointed to represent the interests of the incapacitated adult.  The guardian ad litem is a temporary role.  The guardian ad litem investigates the matter for the court, and typically serves the petition on the incapacitated person during a visit.  The guardian ad litem will also talk to other family members, review medical records, review financial information, and investigate other matters as appropriate.  The guardian ad litem will then make a recommendation in a written report to the court regarding whether the guardianship or conservatorship is appropriate and who should serve in those roles.

 

The court will set a date for a hearing.  The incapacitated person has the right to attend the hearing, request an attorney, call witnesses, cross-examine witnesses, issue subpoenas, and even request a jury trial.  If the matter is uncontested, typically the hearing is a fairly informal matter in the courts of the Roanoke Valley.  The court will ultimately appoint a guardian and conservator if appropriate.  The person appointed will then appear in the clerk's office to qualify as guardian and conservator.  The guardian and conservator (usually the same person, but sometimes different) must sign a bond, and with a conservatorship, usually also must post a surety on the bond.

 

After being appointed, the guardian must file annual reports with the Department of Social Services regarding information such as where the person is living and how they are doing.  The conservator must file reports with the Commissioner of Accounts detailing every financial transaction that has taken place each year.  The duty to pay surety on the bond continues each year as well.

 

 

300 E. 2nd Street

P.O. Box 808

Salem, Virginia 24153

540.389.6060