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Why Would I Need a Guardian?

Independence is important for seniors. No one wants to give that up until it’s absolutely a necessity.  However, could a situation arise where a person has been appointed to be your guardian and no one told you about it?

Relax, in Virginia, if someone petitions the court to become your Guardian (for health) or Conservator (for wealth) the court will appoint an attorney to represent your interest.  You most certainly would know if any such action were contemplated before you must appear in court to defend this action. What if that happened in another state? Perhaps a niece wants to “help,” but she’s halfway across the country.

Here’s how guardianships work.

Guardians are appointed by a judge, for both minors and incapacitated individuals. An application is required to be made to the court in the state and county, where the minor or alleged incapacitated person lives or where his or her property is located. In either situation, once the minor becomes 18, she receives the property. If the incapacitated person returns to full or partial competency, the court (upon application) may restore that person’s rights, which would dismiss or limit the guardianship.

A guardianship is limited to making medical or similar decisions on the incapacitated person’s behalf, or concerning the person’s property, or both. A guardianship can also be limited. This means that the guardian is appointed to only make certain decisions, like financial ones. A guardianship can also be plenary, which means the guardian can be appointed to address all issues.

When a conservator is appointed, however, this individual is appointed to handle all of your financial decisions.  This would mean that you are no longer in control of these assets rather those decisions have been vested with your Conservator.

In Virginia, prior to an individual being appointed as the guardian/conservator of an alleged incapacitated person, that person has to be given notice of the proceedings. That person is also appointed an attorney by the court to advocate for them or to report to the court on their situation. Therefore, in the questions raised above, a senior would be given notice and legal representation. The niece in another state couldn’t petition for a guardianship behind her aunt’s back.

The records of these types of proceedings aren’t open to the public, because of the confidential information in them, like certifications from physicians on the physical and mental condition of the alleged incapacitated person.

However, information on the name of the guardian for the incapacitated person should be available, so creditors and other third parties can know who to rely on when providing services to the incapacitated person.

Reference: nj.com (August 24, 2018) “Worried someone may want to be your guardian? Here’s what you need to know”

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The unprecedented coronavirus pandemic has taken our entire country by surprise. We understand how difficult this time is for America’s businesses and families.  However, we believe it is vitally important that we make every effort possible to continue to offer solutions that avoid disrupting our important partnership with you, your family and friends.  As you know, estate planning is not something that should wait for a more convenient time, therefore the opportunity to address your important goals both during and after this crisis should not wait.  To that end, we have added the option of a ‘virtual consultation’ to our office process.  You will now have a choice of either meeting with us in our office or in the comfort of your own home.