The Bushman Law Group

703.845.9070

Guardianship

The true commencement of a guardianship usually occurs away from the courthouse steps. Generally, either someone's family is concerned with a particular individual's care or well-being. Sometimes there is no family leaving the government or a hospital with concern over a particular individuals care or well-being. There are even times when an individual's bank, neighbors, or friends find these limitations to take care of one's self and take steps to find answers.

The answer can be as simple as finding the individual's agent under a medical power of attorney or advanced directive, other times, the agent is deceased, unable to serve, or the power of attorney is invalid or incomplete leaving possibly no alternative but for a guardianship.

The main concern for most family, friends and neighbors is the thought that they may be betraying that individual's trust, or worth of self-being. Others are concerned with if the behavior is bad enough, or dangerous enough to warrant a great deal of attention.

Family members and friends should rest assured that a guardianship is not a proceeding with the direct goal of removing an individual's rights. The proceeding is to decide, first if the individual is incapacitated, and second, what can be done to do what is in that individual's best interest.

The threshold issue most families and friends struggle with is when are the facts bad enough to warrant legal intervention. The signs that family or friends should seek assistance are not limited to a certain set because there are many diseases, medical illnesses, accidents, or other unforeseen events that do not fit a one size fits all symptoms checklist.

However, there are things that can guide us initially. The term Activities of Daily Living (ADL's) are the basic functions all individuals need to or should be able to complete oneself.

Some examples:

Toiletry - Is the ability to use a toilet to relieve oneself. This task involves being able to transfer oneself to and from the toilet, operate the toilet, and clean oneself.

Dressing - is the ability to pick out clothes that are weather appropriate and put the clothes on in the proper order and without the assistance of another.

Feeding - is the ability to utilize utensils in order to transfer food from the plate in to the mouth. To eat with such a degree of care that there is no choking hazard.

Ambulation - the ability to transfer from one place to the next without the use of an assistive device.

Personal Hygiene and Grooming - ability to shower and bathe, brushing teeth, shaving, and recognize when these things need to occur without prompting on a daily basis.

There are some individuals that can accomplish these tasks but still leave us with great concern. The Instrumental Activities of Daily Life (IADL's) are another measure of whether an individual may be able to function on one's own. Some IADL's are:

Shopping - is the ability to understand what one needs in order to satisfy one's ADL: grocery shopping or clothing shopping.

Medications - is the ability to properly follow your medication's prescriptive direction. The individual must understand when one is to take one's pill, how many of that medication, and then actually take the medicine at that time.

Cooking - Is the ability for one to gather appropriate foods in order to have and prepare a nutritious meal without becoming a danger to oneself or others.

Managing Money - Is the ability to not run out of money before the end of the month or spending money on objects of desire without first buying those things necessary to satisfy one's ADL's.

Planning function and execution of planning- is the ability to plan for one's care in several facets of life and then execute on the plan. The ability to plan to keep the house trash and clutter free and do what is necessary to execute, the ability to plan how much money to save in order to feed oneself until the next income payment and then executing that plan.

Health Management - is the ability to maintain doctor appointments, make new appointments. Receive and evaluate the information giving and follow through with the recommendations.

Transportation - is the ability to get around in the community to accomplish the IADL's.

The list of Activities of Daily Living and Instrumental Activities of Daily Living above are not exhaustive and are a few that have been left off. This list and its definitions are not official definitions but serve to assist the reader in understanding when one should beginning asking more questions.

Once family or friends have identified these signs and fear that they are a safety issue, then reaching out to an attorney experienced in guardianship and conservatorship law is a responsible action.

Legal Beginning

The Guardianship process starts with the filing of the complaint. But before we discuss what is in a complaint, a brief discussion of terms is appropriate.

Respondent - Is the individual whose behavior has caused concern to the petitioner.

Petitioner - Is the individual who usually has witness the concerning behavior. This can be a family member, Friend, Neighbor, Hospital, APS worker, police, bank manager, or any person.

Petitioner's Attorney - is the attorney for the petitioner.

Guardian Ad Litem - is an attorney, certified by the Supreme Court of Virginia. They are the guardian for the respondent, whether a determination of incapacitation has been made or not, during the pendency of the legal proceeding. Upon the expiration or termination of the legal proceeding, the Guardian ad Litem's position ceases.

Guardian - can be an individual who is to act for the Respondent in regards to the Respondent's personal affairs taking into account the Respondent's best interest, what the Respondent wants, and allowing the Respondent to maximize the Respondent's own capabilities.

Conservator - Similar to the Guardian but handles the financial affairs of the respondent.

The complaint is filed by the petitioner or the petitioner's attorney. The complaint details the name, address, residence, family, the concerned behavior, diagnoses of the Respondent. The complaint will also state the financial position of the respondent, propose a guardian and conservator, and request the appointment of a Guardian ad litem. The complaint is usually filed with a required evaluation. The evaluation is done by a medical doctor trained in the area the doctor has diagnosed the Respondent with in forming the doctor's opinion that the respondent lack the ability to care for the respondent's self.

The Court will arrange for the appointment of a Guardian ad Litem who is charged with investigating the truthfulness of the petition, visiting the Respondent, serving the respondent with a copy of the complaint, assisting the respondent in communicated to the court, reviewing the doctor report and financial circumstances of the respondent, interviewing the proposed guardian and conservator, and drafting a report to file and assist the judge with determining the capacity of the respondent. The report will reveal the Guardian ad Litem's investigation and will provide recommendations on the capacity of the respondent, who shall serve as guardian and conservator, the plan of care of the respondent, and other issues as they come to light.

A great majority of cases proceed without much contest. In those cases, the parties will appear at the court hearing where the judge will appoint the guardian and/or conservastor. In a minority of cases the Respondent or the Guardian ad Litem on behalf of the Respondent requests a trial to determine capacity.

The Respondent has the right to an attorney, a trial, a jury of one's peers, to call witness on one's behalf, and to cross examine the petitioner's witnesses.

The Judge, in a contested proceeding, will decide if the Respondent lacks capacity by clear and convincing evidence. If the Judge finds the respondent lacks capacity, the judge will appoint a guardian and/or conservator.

Qualification:

The guardian is appointed by the judge but qualifies as before the probate clerk. The probate clerk will gather the guardian's information and forward to the appropriate state departments the judge's order finding the respondent without capacity. The Clerk will give the guardian an oath and letters of qualification.

The guardian is then charged with handling the personal affairs of the Respondent who is now the guardian's ward. The guardian must instantly make decisions concerning the care of the respondent and gathering information to make future decisions regarding foreseeable and unforeseen health decisions.

Reporting:

The guardian is required to report to the state within the first four months of the appointment and annually thereafter. The report details basic case information on the guardian, mental, social and physical status of the respondent, any change in the respondents diagnosis, the service rendered for the respondent, and whether there continues a need for the guardianship.