As always, prior to reading this blog post, please review my disclaimer by following the link above or by clicking on this link. As always, the legal aspects of the post are relevant only to the Commonwealth of Virginia.
Introduction
It's the point in time that just about every child dreads. That point when mom or dad (or both) gets too old, is hit with a smattering of dementia, and suddenly starts making ridiculous decisions. Maybe they've stopped paying their bills (usually because they've forgotten about them), or they won't go to the doctor because "they're all quacks." Maybe they've been caught in an international scam, and are spending all their money convinced that "this is the last check before my payday."
Regardless of what your parents are doing, this is a very hard time for any child. You want to help them, and you don't want to hurt their feelings, but you just don't know what to do. You've tried talking to them, but that hasn't helped. You've tried offering to step in and help, but they've refused. You're at the end of your rope, you don't know what to do, but you do know that you can't let them go on like this.
The answer is a guardianship and/or conservatorship. This is a legal process by which you can take some of these decisions away from your parents and give them to someone who will act in their best interests (possibly even you). And by the way, guardianships and conservatorships aren't just for elderly parents. Your adult child is repeatedly attempting suicide but refusing to seek help? Your brother or sister suffers from mental retardation and cannot remember to pay their bills? Your elderly neighbor is being taken advantage of by his children? The fact is, in Virginia anyone can file for a guardianship or conservatorship on behalf of anyone else - just make sure you're doing it for the right reasons, and that you have some actual evidence that such a thing is necessary.
Guardianship vs. Conservatorship vs. Both
Before taking action, however, you need to decide what you want to pursue. Do you want a guardianship, do you want a conservatorship, or do you want both? If granted, a guardianship gives you control over the person, while a conservatorship gives you control over the person's assets. As a result, if you have a guardianship but not a conservatorship, you can force your ward to see a doctor, but you can't force him or her to pay their bills. Similarly, if you have a conservatorship but not a guardianship, you can pay the bills for them, but you cannot make them do anything.
So, why would you want one versus the other, and not always want both? Well, pursuing both is pretty much double the legal paperwork, and if one is not really necessary, it will save you time and money not to pursue both, and for the person you are helping, there is psychological value to retaining some autonomy over his or her life. So, if the potential ward is still fine with handling his or her money, but won't take care of him or herself, then a guardianship alone might be worthwhile. If the potential ward cannot handle their money, but can certainly make good decisions for him or herself, then just a conservatorship may be the way to go. If you can't trust the person with either, however, then both is probably the right path for you.
The Process
As you might imagine, you cannot just show up one day and declare yourself the guardian and/or conservator of a person. You must go through the court. This requires filing a petition for guardianship and/or conservatorship. Once that is done, the court will order the appointment of a "Guardian ad Litem." The Guardian ad Litem is an attorney who will act on the potential ward's behalf, but will make his or her own determination, after meeting with the individual and anyone with potential information as to what "acting on their behalf" actually entails. In other words, a Guardian ad Litem may very well support the petition, even if the potential ward personally opposes it. As a result, the potential ward may also hire his or her own attorney to represent him or her in the proceedings.
If the guardianship or conservatorship is uncontested (as in, the Guardian ad Litem agrees with it, and the potential ward either also agrees or does not mount a defense), the process is fairly simple. After the Guardian ad Litem's supportive report is issued, a guardian and/or conservator will be appointed with a set of powers as delineated in the Virginia Code.
If it is contested (the Guardian ad Litem opposes it, or the ward opposes it and mounts an opposition), a trial will be held, and it can be either a bench trial, or a jury trial. At that point, you must prove by "clear and convincing" evidence (so, more convincing than just 50% + 1, but less than "beyond a reasonable doubt") that the person cannot make the relevant decisions for him or herself.
In either case, if the guardianship and/or conservatorship is granted, the next step is to appoint the guardian and/or conservator. Of course, this can be litigated as well. If you are related to the person, and can show that you would not be likely to engage in "self-dealing" (as in, treating your conservatorship as an advance on your inheritance and spending it on yourself, or putting your own interests above your ward's while acting in your official capacity), you may very well be appointed. If no relative is appointed, however, a law firm will often be appointed. It is best to avoid this if at all possible, since law firms are very expensive when serving in this capacity.
This Process Sounds Terrible! How Can I Protect My Children From It?
A contested guardianship and/or conservatorship process can be absolutely terrible on families. Even an uncontested one can be very expensive. If you want to protect your children from ever having to do this to you, there is a solution.
You can draft either a "durable" or a "springing, durable" general power of attorney. In this document, you can lay out all the powers you are giving your child (or spouse, or both, or whomever you wish to give it to), and you can cover all of the guardianship and conservatorship clauses. If it is not "springing," this power goes into effect immediately, and the person you appoint can act on it even while you are not incapacitated. This is worth doing if you a) really trust the person you are appointing, and b) don't feel like dealing with some of the things you list anymore, even if you are capable. If it is "springing," this means it only goes into effect once you are incapacitated, and you can set the terms for how you are deemed to be "incapacitated" (two doctors agreeing on this, for example).
Certainly, this can still ultimately cause litigation and heartache. In the end, however, it is resolved much more simply, and usually more cheaply, than a guardianship/conservatorship battle - and usually without all the hurt feelings to boot. However, usually these powers of attorney do prevent litigation altogether, since usually the potential appointee will not seek to use the power until you actually are incapacitated, and at that point there's a good chance you won't fight back. In that case, this is definitely a much cheaper and easier option than even an uncontested guardianship/conservatorship petition.
Conclusion
If you are concerned that someone you know is no longer able to take care of him or herself, or handle his or her finances, a guardianship and/or conservatorship may be the way to go. If you don't want anyone to ever have to deal with that, however, drafting a power of attorney now is your best solution. If you are considering pursuing a guardianship or conservatorship, defending against a frivolous appointment of a guardian or conservator, or drafting a power of attorney, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com. I do not handle these matters, but other attorneys in the firm I work for do, and your initial consultation is free for up to half an hour.
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