Conservatorship
Beginning
The true commencement of a conservatorship usually occurs away from the courthouse steps. Generally, either someone's family is concerned with a particular individual's ability to handle one's own financial affairs. Sometimes there is no family leaving the government or a hospital with concern over a particular individuals financial affairs. There are even times when an individual's bank, neighbors, or friends find these limitations to take care of one's financial affairs and take steps to find a solution.
The answer may be as simple as finding and contacting the individual's agent under a power of attorney, however, when the agent is deceased, unable to serve, or the power of attorney is invalid there may be no alternative but for a conservatorship.
Family members and friends should rest assured that a conservatorship 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 if so, protecting that individual's assets from exploitation or unintentional unreasonable waste.
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. Many times the ability to handle one's one finances are the first items that an individual begins to have trouble maintaining when they are losing capacity, unfortunately, this is a sign mostly hidden until it is uncovered. It is hard to spot this issue because many people are very protective of their financial status and positions. What family or friends may observe, in addition to the signs for a guardianship are the following:
- The utilities are out.
- New "friends," with no jobs or structure of support are inseparable from the victim.
- Multiple lawsuits for unpaid real estate taxes, services, credit card bills, medical bills.
- Complaints that people are stealing money.
- An irrational belief in winning a lottery or game in connection with paying a great deal of money for that chance of winning
- "Penny wise but pound foolish."
- Multiple transactions with telemarketers
- Constantly borrowing money for staple items when one has had a reliable record of always being able to provide in the past.
- Carrying around a month's worth of expenditures in cash.
Please keep in mind that not one of these possible signs are conclusive that the individual is being financial exploited or going to be financial exploited. Second, please understand that waste, in and of itself, if done knowingly, is acceptable. The philosophy behind most of these signs are that the individual has drastically changed from a prior stable condition and is currently making decisions without appreciating the consequences of the act or finding a way to blame one's own behavior on another. If you believe you have seen signs above or signs you believe are similar to those above 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 citizen.
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 conservator. 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 before the probate clerk. The probate clerk will gather the conservator's information and forward to the appropriate state departments the judge's order finding the respondent without capacity. The Clerk will give the conservator an oath and letters of qualification. The clerk will most likely have the Conservator sign a bond before issuing any documentation.
The conservator is then charged with handling the financial affairs of the Respondent. The conservator must find the assets, protect the assets and distribute or disburse the assets for the benefit of the respondent.
Reporting:
The conservator must file an inventory, a 6 month accounting and an annual accounting thereafter.