A conservator is responsible for managing the estate and financial affairs of an incapacitated person. A guardian is responsible for the personal affairs of an incapacitated person.
Conservatorships and guardianships, separate and distinct entities, are creatures of statute in Virginia (Section 37.2-1000, et seq.). The appointment of a guardian or conservator deprives an individual of basic rights, essentially reducing them to the status of a minor, and is therefore considered mechanisms of last resort. Virginia Courts prefer a least restrictive alternative to conservatorships and guardianships such as durable powers of attorney, trusts, joint ownership of property and representative payers. There are, of course, advantages and disadvantages to the alternatives.
A durable power of attorney coupled with a health care power of attorney (Health Care Decision Act, Virginia Code Section 37.2-1000, et seq., combining both the living will and a health care power of attorney), are preferred by the Courts over conservatorships.
The appointment of a conservator or guardian is commenced with filing a petition, appointment of a guardian ad litem for the allegedly incapacitated person, a notice of hearing, an evaluation report by the guardian ad litem or counsel for the respondent, and a Court hearing. Under the Act, a guardian need not be an appointed for a person who has appointed a person under an advanced directive unless the Court determines that the agent is not acting in accordance with the wishes of the principal or there is some need for decision making outside the purview of the advanced directive. Similarly, a conservator need not be appointed for a person who has appointed an agent under a durable power of attorney. (A conservator need not be appointed for an incapacitated person whose only major source of income is from the Social Security Administration or other government program who has a representative payee.) Conservators must file an inventory of the incapacitated adult’s estate with the Commissioner of Accounts within four months after being sworn in and annually thereafter. Guardians must file their first report within six months of qualification and annually thereafter.
The process can be expensive. Costs are usually borne by the incapacitated person’s estate. Less expensive alternatives should always be explored before embarking on the conservator/guardian appointment process. However, the conservator/guardian statutory schemes in Virginia ensure that the estate of an incapacitated person will be used for his or her benefit.