If an adult becomes incapacitated, and there is a need to have another person appointed by the court to take over management of that adult’s financial and personal affairs, a petition may be filed with the appropriate Circuit Court to have a guardian and conservator appointed for the incapacitated adult.
The appointment of a guardian or conservator is an extraordinary measure, as it will revoke the legal rights of the adult respondent, including the right to sign contracts, write checks, decide where to live, and make decisions about medical care and treatment. It can also result in the revocation of the right to vote, to operate a motor vehicle, to change your marital status (get married or get divorced), or to carry a weapon. Because of this interference with basic legal rights, the court imposes protective requirements to be sure that a guardian or conservator is needed and that the proposed person is appropriate to act in that capacity.
A guardian can be appointed to manage personal and medical decisions, including choice of medical providers, choice of care plans and treatment, and decisions about where to live.
A conservator can be appointed to manage finances and make financial decisions, including paying bills, monitoring investments, and selling real estate.
Our office is available to represent petitioners who are requesting that a guardian and conservator be appointed, whether for a young adult with cognitive or functional impiarments or for an older adult whose abilities have diminished. We can assist in evaluating the need for this proceeding and, if it appears to be the appropriate path, in preparing the evidence and pleadings necessary to present the request to the court.
The court will appoint an independent attorney to investigate the allegations and report to the court, and to protect the legal rights of the respondent throughout the proceeding. This independent attorney is the “guardian ad litem” for the particular proceeding, and will be drawn from a list maintained by the court of attorneys who have completed the required training and have the necessary experience to serve in this capacity. We frequently serve as guardian ad litem on the request of the court, or on request of a party if approved by the court.
An adult respondent has the right to object to the proceeding, to call his or her own witnesses, to question any witnesses put forward by the petitioner, and to be present at any court hearing. The respondent also has the right to be represented by an attorney, and the Commonwealth of Virginia will pay for the attorney if the respondent cannot afford it. We are available to serve as attorney for the respondent in cases where it appears that the petition may have been improperly brought, or where the respondent needs a voice to be heard during the course of the proceeding.
Special Needs Guardianship
A child with special needs may require a guardian upon turning eighteen, since the law considers the child to be an adult at that age unless there is a court finding that the child does not have the full capacities of an adult. It is most frequently a parent who brings the petition for a court to issue such a finding and appoint a guardian. This may be necessary in order to allow the parent to continue participating in the child’s educational program, as well as to obtain information and participate in the child’s medical care and treatment. The court can allow for a limited guardianship or a limited conservatorship, if there are areas in which the child can function as an adult and other areas where significant assistance will be required. The child has the right to be represented and to object to the proceeding, and a guardian ad litem will investigate and report to the court on the appropriateness of appointing a guardian or conservator. We are available to represent parents in bringing these petitions, and can also serve as guardian ad litem upon request of the court or on request of a party if approved by the court. We are also available to represent the child respondent where it appears that the petition may have been improperly brought, or where the respondent needs a voice to be heard during the course of the proceeding.
Special Needs Planning
Parents who wish to provide for a child with special needs can do so through a trust established for the benefit of the child. The trust can be established and funds transferred to the trust during the parents’ lifetimes, with advice to other family members or relatives that the trust is the appropriate beneficiary of any bequests or gifts to be made on behalf of the child with special needs. In the alternative, the trust can come into existence at the death of the parents and be funded through testamentary bequests, life insurance proceeds, or other assets to be transferred following the death of the parents.
A child with special needs may be receiving, or may need to receive in the future, benefits through a government program that support housing, vocational training, education, employment, supportive services, medical care, and other benefits that provide for basic needs and for an enhanced quality of life. The child’s trust must be structured and administered to avoid jeopardizing the child’s eligibility for these benefits. We are available to prepare special needs trusts, and to advise and counsel the trustee in the appropriate administration of the special needs trust. Eligibility rules are complex, and change frequently, and the trustee must stay informed of these rules in order to protect the eligibility of the beneficiary.
Litigation Settlements or Awards
If a child or an adult suffers a traumatic injury as a result of the negligence of another, a special needs trust may be the appropriate vehicle to receive and manage any settlement proceeds arising out of a claim for damages against the responsible party. We are available to consult and work with trial attorneys prior to settlement, in order to protect the client’s eligibility and maximize the funds available to supplement the client’s government benefits and provide for an enhanced quality of life.