A guardian is a person appointed by a court who manages the personal affairs of an incapacitated person (the legal term in Virginia) and makes decisions for that person.
DID YOU KNOW?
An individual under full guardianship most often loses their civil rights, including the right to vote, sign contracts, marry, and drive. They may, for example, lose the right to decide where they want to live and with whom, when they can see their friends, whether they can have a romantic or sexual relationship, and whether they can work. It is an option that may be needed for some individuals, but you may want to consider other options first so that your child can have maximum independence.
Some individuals may need guardianship to ensure their health, welfare, and safety. For older individuals, having dementia, like Alzheimer’s disease, is a reason that family members may feel that guardianship is needed. Guardianship may also be appropriate for some individuals with significant intellectual, mental, or other disabilities when a court determines that they are not competent (able) to make decisions in some areas or all areas of their life. Some reasons to seek guardianship may include:
- Major medical and health concerns, including seeking care and following medical advice
- Financial and legal concerns including the signing of contracts
- Self-care, safety, exploitation (being taken advantage of), and abuse concerns, including sexual abuse
- A less restrictive form of decision-making has been tried and did not work
Some reasons you may not want to pursue guardianship:
- The adult child is being publicly declared incompetent
- The court will play a greater role in the individual and family’s life
- Guardianship is expensive and hard to modify or end
- When there is a guardianship, often others only deal with the guardian and the individual does not have any or has limited input into their own life decisions, small and big
You can also think about limited guardianship (for personal matters) or fiscal conservatorship (for financial matters). With these choices, the individual does not lose all their rights and the guardian or conservator is only responsible for certain decisions (health care, contracts, finances, etc.).
In Virginia, guardianships and conservatorships are different processes. A separate court order is required for each although the guardian and the conservator may be the same person. Some individuals may need a financial conservator but not a guardian. All individuals who serve as a guardian (full or limited) or fiscal conservator must report annually to the court to show that they are acting in the best interests of the individual. Here is some useful information for individuals who have been appointed guardian or conservator.
An individual has the right to challenge (oppose) a guardianship or conservator proceeding or an existing guardianship or conservatorship. A judge will make a decision on that challenge.