Guardianship & Conservatorship

A child’s eighteenth birthday marks his or her entry into adulthood and is an exciting occasion for most families. However, the approach of this milestone may create some angst in the hearts and minds of parents with special needs children. The law considers a person an “adult” upon reaching the age of 18 and it’s at this point that parents are no longer automatically entitled to involvement in their children’s medical and educational decisions. Children with special needs may require more guidance and direction from parents, and parents may need continued involvement in the child’s medical care and educational decisions.

Gaining guardianship or conservatorship over a loved one should be a path of last resort for several reasons. First, a guardianship/conservatorship proceeding may be uncomfortable when the person petitioning for a guardian or the proposed guardian must say difficult things about a loved one in open court and in the presence of the loved one. A family member may not take kindly to hearing that their daughter, son or other relative believes them incapable of caring for themselves and/or their finances. Second, some family members may disagree that a guardian or conservator is necessary or may object to the proposed guardian or conservator. In such a case, conflict in the family amplifies and the costs of the proceeding rise. Third, when a guardian is appointed for a ward, the ward’s right are taken away – rights that are often basic to our idea of what it means to live free in the United States – rights such as the ability to decide where one lives, travels, receives care, whether one enters a contract, has a driver’s license, or votes.

Scams targeting the elderly abound. From Medicare and health insurance scams to telemarketing/phone scams and sweepstakes/lottery scams and more, the elderly are vulnerable. Why? Fraudsters assume that the elderly are lonely, willing to listen, more trusting than younger individuals, and may have disposable income to spare. Individuals suffering from dementia and Alzheimer’s Disease are particularly susceptible to being taken in by one of these cons.

Taking away the rights and freedoms of an incapacitated person through the guardianship process is a serious matter. Accordingly, a lengthy and sometimes confusing legal procedure has been established to ensure that only those who are truly incompetent become wards. We at Petty, Livingston, Dawson and Richards have worked to remove confusion and make the process more transparent in order to assist our clients in protecting their loved ones.

The terminology involved in the areas of Guardianship, Conservatorship and elder care in general can be confusing. We have had clients incorrectly believe that their elderly relative with dementia can execute a Power of Attorney so that they can step in a make decisions for the relative. Other clients have falsely assumed that since they are an Executor under a family member’s will, they can make health care decisions for that family member. We have also heard from people who assume that they have guardianship over someone because they have been appointed agent under an Advance Medical Directive. This second article in our series “Guardianship and Conservatorship in Virginia” will attempt to clarify and explain some of these terms.

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925 Main St., Suite 300 
Lynchburg, VA 24504 

434-846-2768
434-847-0141
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