Guardianships & Conservatorships

Guardianships & Conservatorships

For some members of our society, legal protection may be necessary even after they have entered adulthood. These individuals may have been injured in an accident, continue to suffer from an incapacitating physical illness or psychological disorder, or have some other condition that prevents them from caring for themselves. In these cases, a guardianship may be established.

Guardians and Protected Persons

Guardianship, also referred to as conservatorship, is a legal arrangement that places an individual, also known as a ward or protected person, under the supervision of a guardian, or custodian.  There are two main types of guardianship: guardianship of the person and guardianship of the estate or property.

A guardian is typically a family member, friend, or fiduciary appointed by the court. A protected person can be a minor without a parental guardian or an adult who can no longer make safe and sound decisions about his or her own person or property. Additionally, a person who is prone to fraud or undue external influence may be placed under guardianship for protection.

Appointment of a guardian can materially limit the rights and privileges of the protected individual in areas such as:

  • Choosing residence
  • Providing informed consent to medical treatment
  • Making end-of-life decisions
  • Making property transactions
  • Obtaining a driver’s license
  • Owning, possessing, or carrying a firearm or other weapon
  • Contracting or filing law suits
  • Marriage
  • Voting

Conservatorship over the Estate or Property

A conservatorship of the estate or property empowers the conservator to make important financial decisions on behalf of the protected person, including:

  • Organizing, gathering and protecting assets
  • Arranging appraisals of property
  • Safeguarding property and assets from loss, whenever possible
  • Managing income from assets
  • Making appropriate payments
  • Obtaining court approval before any sale of major assets
  • Require reports and accountings to the court on an annual basis 

Right to Due Process

The law firm of J.S. Burton can represent you in court to obtain guardianship, conservatorship, or both. The firm has also successfully removed, changed, or transferred a conservatorship or guardianship in the Commonwealth of Virginia from one person to another or from another state.  We also can assist in helping you administrate and file the required annual paperwork before the clerk's office. 

Lastly, can you change the photo on the page from a young adult to attractive senior women or man. 

In order to safeguard the protected person’s right to due process, he or she is usually provided with notice and is entitled to attend all legal proceedings related to guardianship. In addition, the protected person may obtain representation by an attorney, present evidence, and confront and cross-examine all witnesses.

Guardianship of the Person

Guardianship of the person grants authority over non-financial matters such as issues that impact the personal well-being of the protected person, including making important medical decisions. The appointed guardian is normally tasked with the following responsibilities

  • Determining and maintaining residence
  • Providing informed consent to and supervising medical treatment
  • Consenting to and supervising non-medical services such as education, psychiatric or behavioral counseling
  • Making end-of-life decisions
  • Maintaining the protected person’s autonomy as much as possible

Guardianship of the Estate or Property

Guardianship of the estate or property empowers the guardian to make important financial decisions on behalf of the protected person, including:

  • Organizing, gathering and protecting assets
  • Arranging appraisals of property
  • Safeguarding property and assets from loss, whenever possible
  • Managing income from assets
  • Making appropriate payments
  • Obtaining court approval prior to any sale of major assets

The guardian may be required to report to the court about his or her activities on an annual basis.

Many guardianships are temporary arrangements, meant to protect an incapacitated individual until he or she regains capacity.

Guardianship of Minors

Guardianships may also be used to protect the legal rights of a minor. In the event that a parent is no longer able to act on behalf of his or her child, a guardian, usually a relative, is appointed. Unlike an adoption, under a guardianship, parents may remain responsible for supporting the child financially and they do not necessarily forfeit their parental rights.

A minor may be considered for legal guardianship if his or her parent cannot provide shelter, does not have a steady income, suffers from an illness, or is incarcerated. In most instances, parental approval is sought prior to any legal proceedings.


Contact the attorneys of J.S. Burton, P.L.C. at (888) 885-9001 for a consultation today.


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    FAQs

    • What is estate planning?

      When someone passes away, his or her property must somehow pass to another person. In the United States, any competent adult has the right to choose the manner in which his or her assets are distributed after his or her passing. (The main exception to this general rule involves what is called a spousal right of election which disallows the complete disinheritance of a spouse in most states.) A proper estate plan also involves strategies to minimize potential estate taxes and settlement costs as well as to coordinate what would happen with your home, your investments, your business, your life insurance, your employee benefits (such as a 401K plan), and other property in the event of death or disability. On the personal side, a good estate plan should include directions to carry out your wishes regarding health care matters, so that if you ever are unable to give the directions yourself, someone you know and trust can do that for you.

    • How do I name a guardian for my children?
      If you have children under the age of eighteen, you should designate a person or persons to be appointed guardian(s) over their person and property. Of course, if a surviving parent lives with the minor children (and has custody over them), he or she automatically continues to remain their sole guardian. This is true despite the fact that others may be named as the guardian in your estate planning documents. You should name at least one alternate guardian in case the primary guardian cannot serve or is not appointed by the court.
    • When should a Special Needs Trust be established?
      Generally, a Special Needs Trust should be established no later than the beneficiary’s 65th birthday. If you have a disabled or chronically ill beneficiary, you may want to consider establishing the Special Needs Trust at an early age.  One benefit of having the Trust in place is that if the disabled beneficiary becomes the recipient of funds such as gifts, bequests or a settlement from a lawsuit, they can immediately be transferred to the Special Needs Trust without affecting that individual’s eligibility for government benefits.
    • What is a living will or advance medical directive?
      A living will or advance medical directive informs others of your preferred medical treatment should you become permanently unconscious, terminally ill, or otherwise unable to make or communicate decisions regarding treatment.  In conjunction with other estate planning tools, it can bring peace of mind and security while avoiding unnecessary expense and delay in the event of future incapacity.