Care Partner Training: Guardianship Primer

Court controlled guardianship is one of the most difficult and complex issues facing caregivers. To aid caregivers, Insight Memory Care Center recently hosted a webinar, in collaboration with AARP Virginia, to inform potential guardians and conservators of their roles and responsibilities.

The webinar was presented by Alexis R. Abraham, senior associate attorney with Bronley Law, located in Fairfax. She specializes in legal issues related to adult guardianship and conservatorship. Her presentation was part of Insight’s monthly Care Partner Training series.

Guardianship is often considered as a last resort when an individual has reduced capacity for their personal care and there is no practical alternative. Abraham distinguished a guardian as someone who makes personal care decisions while a conservator manages financial affairs. Both positions can either be full or limited appointments. They are controlled by judicial processes under Virginia law.

Abraham said anyone can file a petition for guardianship or conservatorship in a state court near where the individual needing assistance resides. This can be a family member, caregiver, agency or hospital. The petition needs to include a medical evaluation, information about the person’s Social Security and financial status.

A guardian ad litem (GAL) is appointed by the court in every case when a guardian or conservator is requested. The GAL is the eyes and ears of the court, investigates the case, and makes a report to the court with recommendations. Abraham said the GAL advocates for the person needing assistance, but is not the person’s attorney. The GAL must personally serve the individual with the petition and
 notice of the hearing, and then explain the petition and advise the person of his or her rights.

The court makes the final decision in appointing a guardian or conservator. The hearing may be either contested or uncontested, and the petitioner must prove by clear and convincing evidence that the person is incapacitated, that there are no less-restrictive means available, and that the proposed fiduciary is suitable and appropriate.

After the guardian/conservator is appointed, they must be qualified by the probate court to serve in that role, and post an appropriate bond securing their fiduciary roles. Then the probate court circulates an order to appropriate government agencies—such as the board of elections and local police--of the court’s decision.

There are training and reporting requirements for guardians and conservators. These include mandatory training within 120 days, guardian visits every 120 days, periodic reporting, court reviews, and modification or termination requests.

Caregivers should consider alternatives to guardianship and conservatorship to see if these are practical, Abraham said. These include estate planning, durable power of attorney and medical power of attorney. Also, provisions of the Health Care Decisions Act and use of a representative payee for Social Security benefits may be useful for some people.

The Insight Memory Care Center indicated it would place this webinar on-line and open to the public at https://www.insightmcc.org/education/resources/resource-library.html.