In Virginia, a “guardian” is a person appointed by the Court to conduct the personal affairs of an incapacitated person. These personal affairs might include health care or residential arrangements. A “conservator” is a person appointed by the Court to manage the estate and financial affairs of an incapacitated person. The commonality between these two concepts is the notion of legal incapacity. Under the Code of Virginia, a family member or other adult cannot become a loved one’s guardian or conservator until the loved one is declared to be legally incapacitated.
But what does it mean for someone to be legally incapacitated? The Code of Virginia defines an “incapacitated person” as an adult who is “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 the support of his legal dependents without the assistance or protection of a conservator.” The Code also explicitly states that an adult’s display of poor judgment alone is not sufficient to find that adult legally incapacitated.
In some instances, upon first glance, the adult alleged to be incapacitated is obviously incapacitated and in need of a guardian and/or conservator. Imagine the case in which an older adult has such severe dementia that she cannot even recall her own name—clearly, this woman would not be able to make her own health care decisions or manage her finances. Imagine also a younger adult born with autism who is non-verbal and has always depended upon his parents. In these matters, a guardian and/or conservator is appointed without much fuss, after certain legal hoops are jumped through.
On the other hand, I have been involved in quite a few contested cases in which the central issue was whether the adult was actually incapacitated. I have represented parents who have sought to prevent their young adult children from being declared incapacitated at the request of the other parent. I have served as counsel for adults who vehemently denied that they were incapacitated and sought to fight the guardianship/conservatorship action with every fiber of their being. From time to time, I have also served as the Guardian ad litem for an adult who wished to contest an incapacity allegation. (A Guardian ad litem is an attorney appointed by the Court in every guardianship and/or conservatorship action and who is tasked with advocating for the adult’s best interests—and not necessarily what the adult desires to happen.) All of these cases required the adult’s functioning to be evaluated by at least one appropriately-credentialed health care provider and hinged, in substantial part, on expert opinions as to the adult’s functioning.
At the end of the day, a legal determination of incapacity is consequential and not one which should be sought or bestowed lightly. With such a finding comes an adult’s loss of the legal ability to function as an adult in our society—he or she can no longer make health care decisions on his or her behalf, cannot enter into contracts, cannot vote, cannot operate a motor vehicle, and cannot bear arms, among other things. Further, the analysis of capacity is actually-dependent and can be complex. If you believe that your loved one may be incapacitated and is in need of guardian and/or conservator, or if you wish to contest allegations of incapacity made against you in the context of a request for a guardian and/or conservator, please contact me, Kimberly Skiba-Rokosky, at 703.251.5400 or KRokosky@SurovellFirm.com to schedule a consultation.
Posted in: Estate planning/Trusts, Estate/Trust planning