Guardianship is a relationship created by a court order that permits an individual or authorized organization to make decisions about personal affairs, medical treatment, surgery, services, and living circumstances on behalf of an incapacitated individual, a person who is unable to handle personal affairs due to cognitive impairment, mental illness, or developmental disability.
Conservatorship is a relationship created by a court order that permits an individual or authorized organization to make decisions about finances, income, and property on behalf of an incapacitated individual, a person who is unable to handle financial affairs due to cognitive impairment, mental illness, or developmental disability.
When someone petitions for appointment of a guardian or conservator, the court appoints a guardian ad litem, or “guardian for the suit,” an attorney to represent the best interests of the incapacitated person. The guardian ad litem, often referred to as the GAL, is required to thoroughly investigate the petition and to make an independent, objective report to the court.
The guardian ad litem is required to speak to the incapacitated individual in person, and to advise him of his rights, including the right to an attorney of his choice and the right to attend the hearing. The GAL should speak to all family members, involved friends, health care providers, and others with relevant information.
The GAL should ensure that the incapacitated person has an attorney of his choice, or a court appointed attorney, if requested, that the incapacitated person and all family members receive proper notice of the hearing, and that the court employs the least restrictive alternative and acts in the best interests of the incapacitated person.
The public guardianship programs were created in 1998 after a successful pilot program. The purpose of the public guardianship programs is to provide guardian and conservator services for the estimated 2000 incapacitated adults state-wide who are indigent, cannot care for themselves, and have no family members or others to assist them.
The public guardianship programs are supposed to be “guardians of last resort,” employed only when there is no one else to serve, and no less restrictive alternative than public guardianship.
Numerous agencies, including the Virginia Division for the Aging, the Virginia Public Guardian and Conservator Advisory Board, the courts, and the Commissioner of Accounts, as well as the guardian ad litem, are supposed to provide strict oversight of these public guardianship programs, ensuring that they act in the best interests of their voiceless, vulnerable, elderly incapacitated clients. Unfortunately, the strict requirements governing oversight of the public guardianship programs have been soundly defeated by the creation of literally hundreds of so-called “private” guardianships, not subject to any accountability or oversight from any outside agencies.
The information presented here is not intended to serve as legal advice or to take the place of a professional legal consultation. The creators of this website have no liability or responsibility to any person or entity with respect to any loss or damage alleged to be caused directly or indirectly by the information presented on this website. If you have questions about the care or circumstances of an incapacitated person in a public guardianship program, please consult an attorney as soon as possible!