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.
Guardianships and Conservatorships are meant for incapacitated individuals. A court will appoint a Guardian for an incapacitated person to make mostly healthcare decisions for that person; a Conservator is appointed to handle the incapacitated person’s finances. When a Guardian and/or Conservator is appointed, the incapacitated person is unable to make decisions about healthcare and finances on their own, although the appointed Guardian/Conservator should always take the incapacitated person’s thoughts and opinions into consideration before making decisions.
A Power of Attorney and an Advance Medical Directive are documents created by persons with mental capacity. A Power of Attorney is a legal document that a person executes that allows another person to make financial decisions for him or her should he or she become incapacitated. The person holding the Power of Attorney is then the financial agent. The Power of Attorney is no longer effective after the death of the individual making it. Similarly, a person with capacity may execute an Advance Medical Directive and appoint an agent to address health care issues and decisions in the event he or she is later determined to be incapable of making those decisions.
The area of Wills and Trusts comes with its own terminology. The person making a will names an Executor to handle their affairs once they are deceased. The Executor will assist in carrying out the wishes of the deceased person as outlined in the will. A Trust document appoints a Trustee to handle the assets in a trust and to carry out its instructions as outlined in the Trust. The Next of Kin to a person is the person mostly closely related to that person as defined by state law. Pursuant to Virginia law, "Next of Kin" order is a person’s spouse, adult children, parents, adult siblings, maternal grandparents, paternal grandparents, adult maternal siblings, and finally adult paternal siblings.