ElderLaw News-The Estate Planning & Elder Law Firm, P.C. — MD, VA, DC
ElderLaw News
ElderLaw News is a weekly e-newsletter that brings you reports of legal developments and other trends of vital interest to seniors and their advocates. This newsletter is brought to you by The Estate Planning & Elder Law Firm, P.C., William S. Fralin, Esq., President., William S. Fralin, Esq., President.

Managing Incapacity: A Brief Overview of Guardianship in Virginia and Available Alternatives

Managing Incapacity

Upon reaching the age of majority, an individual is presumed to have the capacity to make his or her own decisions. Many people plan for an incapacity by executing a Power of Attorney and Advanced Medical Directive, documents that appoint someone to serve as an agent under terms and conditions set forth in the document. However, a problem arises when advanced planning has not been done and an individual no longer has the requisite legal capacity to execute a Power of Attorney and Advanced Medical Directive.

In most cases, when an adult becomes incapable of making their own decisions and appropriate estate planning documents do not exist, a local court will need to appoint a substitute decision maker. These substitute decision makers, known as Guardians and Conservators, will then have the authority to make decisions on behalf of the incapacitated individual. In Virginia, a Guardian is a person appointed to make health care decisions for an incapacitated individual, while a Conservator is a person appointed to make financial decisions.

To initiate a guardianship proceeding, a formal request for appointment must be made in the appropriate court. A Guardian ad Litem will be appointed by the court to protect the interests of the person with the alleged incapacity, medical evidence of the incapacity must be produced, and notice of the proceedings must be provided to individuals identified by the Commonwealth of Virginia as having an interest in the matter. The person against whom the suit is brought has rights, such as the right to be represented by an attorney of their choosing and a right to a trial by jury.

At the hearing, the court will attempt to determine if an individual is incapacitated and, if so, to what extent the individual requires assistance. If the court determines that the individual is incapacitated, the court will then determine the appropriate individual(s) to serve as a guardian and conservator. The appropriate individual may be an adult individual such as a relative or friend, or may be an entity such as a non-profit agency or a corporation. Upon appointment as a Guardian or Conservator, the appointed individual will be required to qualify in the clerk’s office and post a bond, which may be with or without surety.

With the determination of incapacity and appointment of a Guardian or Conservator, the person with the incapacity may lose fundamental rights and privileges such the right to vote, marry or divorce, or carry a driver’s license. Because the guardianship process may affect such rights, state law require that guardianship be imposed only when less restrictive alternatives are not available. In addition to the execution of a Power of Attorney and Advanced Medical Directive, less restrictive alternatives include the appointment of a Representative Payee by a state or federal benefits or entitlement program, establishment of trusts, and utilizing default provisions under the Virginia Code.

Many factors must be considered when managing incapacity. To assess how you should prepare for incapacity, or to receive assistance in managing a loved one’s incapacity, contact The Estate Planning & Elder Law Firm, P.C. to schedule an initial consultation with one of our attorneys.


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The Estate Planning & Elder Law Firm, P.C.

The Estate Planning & Elder Law Firm, P.C. is an elder law firm. We represent older persons, disabled persons, their families, and their advocates. The practice of elder law includes estate planning, estate and trust administration, powers of attorney, advance medical directives, titling of assets and designations of beneficiaries, guardianships, conservatorships, and public entitlements such as Medicaid, Medicare, Social Security, and SSI, disability planning, income tax planning and preparation, care management, and fiduciary services. For more information about The Estate Planning & Elder Law Firm, P.C., please visit our website at http://www.chroniccareadvocacy.com.

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This newsletter is not intended as a substitute for legal counsel. While every precaution has been taken to make this newsletter accurate, we assume no responsibility for errors, omissions, or damages resulting from the use of the information in this newsletter. The Estate Planning & Elder Law Firm, P.C. thanks the law firm of Hook Law Center for their input to this newsletter.

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