When a Virginia circuit court deems a person incapacitated, it can appoint someone to handle the individual's affairs in the form of a guardianship or conservatorship. While these legal arrangements can provide for an incapacitated person's basic needs and protect them from exploitative harm, they are extreme measures that also take away their rights and ability to make their own decisions. As a result, the process isn't suitable for everyone, and contests to guardianship or conservatorship proceedings are far from uncommon.
At Cucinelli Geiger, PC, our team of experienced and understanding Virginia attorneys helps clients explore their legal options for caring for incapacitated individuals. If you are considering pursuing a guardianship or conservatorship for an incapacitated loved one or fighting back against an arrangement you don't feel is in a family member's best interest, you have come to the right place. Here's what you should know about contested guardianships and conservatorships, including some of the most common grounds for objections.
Incapacity in Virginia
Legal incapacitation is more than simply exercising poor judgment. Virginia law defines it as being incapable of effectively receiving and evaluating information or responding to people, events, or environments to the extent that the person in question lacks the capacity to:
- Meet essential requirements for health, care, safety, or therapeutic needs without the assistance or protection of a guardian
- Manage property or financial affairs or support legal dependents without the assistance or protection of a conservator
Obtaining a guardianship or conservatorship for a close friend or family member requires providing proof of incapacity, and showing that the individual makes poor choices usually isn't enough. Discuss your options with one of our exceptional attorneys.
Guardianship vs. Conservatorship
While guardianships and conservatorships serve similar functions, the terms aren't interchangeable. They are defined as follows:
- Guardianship. This court process appoints a guardian to direct an incapacitated individual's personal affairs, making decisions regarding their safety, support, treatment, health, education, and residence.
- Conservatorship. This legal proceeding appoints a conservator to handle the estate and financial matters for the incapacitated person (known as the conservatee).
The court can appoint a guardian to handle the individual's personal affairs or a conservator to direct their finances. If the person needs help managing both personal and financial matters, the court may opt to appoint a guardian and a conservator. This could be one single person, two separate individuals, or multiple people sharing the roles as co-guardians or co-conservators.
Grounds for Contesting a Guardianship or Conservatorship
The Person Isn't Truly Incapacitated
Contesting a guardianship or conservatorship that you feel is unnecessary requires showing that the proposed ward or conservatee is capable of making important decisions for themselves and managing the daily activities of living. Testimony from treating physicians, as well as friends, family members, and neighbors, can help support your position that such significant supervision and wide-ranging restrictions aren't needed.
There Is a Less Restrictive Alternative
Because guardianships and conservatorships take away an incapacitated individual's rights, less restrictive alternatives should be explored whenever possible. Examples of less extreme options include:
- Durable medical power of attorney, which gives a person the legal ability to make medical decisions for another individual when they're unable to do so.
- Durable power of attorney, which grants a person the legal authority to make decisions regarding another individual's money and property when they're not able to.
- Representative payee, which is a person appointed by the Social Security Administration (SSA) to manage a recipient's benefits.
- Limited guardianship/conservatorship, in which the court appoints an individual (or individuals) to help make certain decisions for a person who requires assistance but isn't fully incapacitated.
There Are Existing Power of Attorney Documents in Place
Individuals may also have grounds to contest a guardianship or conservatorship if the incapacitated person has valid power of attorney documents in place, as they essentially serve similar functions but with fewer restrictions. For example, if a person has a durable power of attorney to make medical decisions for them when needed, a guardianship may not be necessary. Likewise, if a person has a power of attorney to direct financial matters on their behalf, a conservatorship may not be needed.
The Person Seeking to Serve as Guardian or Conservator Is Unfit
Making sure the right guardian or conservator is appointed to direct your loved one's affairs is vital. You may have grounds to contest a proposed guardian or conservator as unfit if they:
- Have a criminal record
- Have a history of violent behavior
- Have a history of drug or alcohol abuse
- Are incapable of understanding or providing for the incapacitated individual's personal needs
- Are unable to appropriately manage a conservatee's estate and finances
- Have a history of making poor financial decisions
- Were previously responsible for caring for the incapacitated individual but neglected their duties
Schedule a Consultation
Is your loved one's guardianship or conservatorship being contested? Are you considering contesting an arrangement or individual that isn't right for your family member? Contact us to schedule a consultation to discuss your legal situation and goals and find out how we can help.