Defined Terms in Virginia Guardian and Conservator Law for Incapacitated Adults | Ryan C. Young | Richmond, Virginia Guardianship Attorney

Richmond, Virginia Guardianship Attorney

What happens when an adult can no longer manage their personal affairs, be they financial, personal, or medical?  An adult who has lost their capability to make decisions such as these is referred to legally as being “incapacitated” and finds themselves in need of a guardian, a conservator, or both.  But what exactly do those terms mean? In Virginia, all of the important terms related to guardianship for adults may be found in Va. Code Sec. 64.2-2000. For convenience, I have only included the most relative portions of specific defined terms. There is a lot of information to search through.

“Incapacitated person” means an adult who has been found by a court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator. A finding that the individual displays poor judgment alone shall not be considered sufficient evidence that the individual is an incapacitated person within the meaning of this definition.

  • Pay extra attention to that last sentence. In Virginia, as in most states, it isn’t enough to say that the person is making bad decisions. This is America; we’re free to make as many bad choices as we want. Instead, you need to show that the person is incapable of differentiating between a good decision and a bad one. Essentially, they lack the capacity to weigh risks vs. rewards.

“Guardian” means a person appointed by the court who is responsible for the personal affairs of an incapacitated person, including responsibility for making decisions regarding the person’s support, care, health, safety, habilitation, education, therapeutic treatment, and, if not inconsistent with an order of involuntary admission, residence.

  • States use different terms here. In Virginia, a guardian’s main role is to oversee medical treatment and healthcare decisions for an incapacitated adult. A guardian may also access the medical (HIPAA protected) records and speak openly with healthcare providers of an incapacitated adult.

“Conservator” means a person appointed by the court who is responsible for managing the estate and financial affairs of an incapacitated person and, where the context plainly indicates, includes a “limited conservator” or a “temporary conservator.”

  • Generally speaking, a conservatorship handles the financial affairs of the incapacitated adult. Conservatorship can often be quite broad. For example, a conservator may enter into a contract on behalf of the incapacitated adult. Also, the conservator may sue on behalf of the adult. In one sad case that I worked on, a conservator was needed to defend a divorce on behalf of an incapacitated woman.

The Virginia statute also goes on to define limited guardian and limited conservator. Remember, a Virginia court may find that the Respondent is capable in some areas but not others.

Remember, the Virginia courts may also consider whether there is a less restrictive alternative to guardianship and conservatorship. A finding of incapacity may have the effect of removing certain civil rights; courts should proceed with caution.

Most other questions that you have related to Virginia guardianship or conservatorship for an incapacitated adult may be found in the statutes following Va. Code § 64.2-2000. However, keep in mind that it may be rather difficult for you to proceed with this type of case without an attorney.

Ryan C. Young | Richmond, Virginia Attorney | Guardianship Attorney for Incapacitated Adults

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