Guardianship and Conservatorship of an Incapacitated Adult in Virginia are two separate roles. | Ryan C. Young | Richmond, Virginia Attorney

The guardian and conservator can be the same person or different people.

Co-guardianship or co-conservatorship is also an option if more than one person would like to care for the incapacitated person.  When an adult is determined by the court to be incapacitated, the person has been found to be incapable of receiving and evaluating information effectively. The incapacitated adult cannot maintain health, care, or safety needs. A Guardian is appointed to be responsible for personal affairs to include the support, care, health, safety, habilitation, education, treatment, and in some cases with an order of commitment, residence. A Conservator, however, is appointed to take care of financial affairs including property and estate on behalf of the incapacitated individual.

Co-guardianship or co-conservatorship is also an option if more than one person would like to care for the incapacitated person.  When an adult is determined by the court to be incapacitated, the person has been found to be incapable of receiving and evaluating information effectively. The incapacitated adult cannot maintain health, care, or safety needs. A Guardian is appointed to be responsible for personal affairs to include the support, care, health, safety, habilitation, education, treatment, and in some cases with an order of commitment, residence. A Conservator, however, is appointed to take care of financial affairs including property and estate on behalf of the incapacitated individual.

Do you need Separate Suits for guardianship and conservatorship in Virginia?

No, a request to appoint a guardian and conservator may be brought in the same legal proceeding in Virginia.  The court prefers to take all of an incapacitated person’s needs into account at one time.  One proceeding can appoint both the guardian and conservator. It may not even be necessary to appoint a conservator if the incapacitated person does not sufficient assets.  There are also instances where the incapacitated person has capacity in some areas but cannot control other aspects of their day-to-day needs.  Each individual will have special circumstances that are considered by the court before appointing anyone to assist in a fiduciary capacity.

Both the Guardian and the Conservator are considered to be in a fiduciary relationship with the incapacitated person, meaning they are both required to act in the best interest of the incapacitated person and to the extent known, act in accordance with his/her expressed desires and personal values. As such, the Virginia court will also need to consider whether the proposed Guardian and/or Conservator is fit to serve in that capacity. For example, a Virginia court would be wary to appoint someone as a conservator if they have a history of poor financial decision-making.

Richmond, Virginia Guardianship Attorney

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