By: Kevin McCandlish
Conservatorships in the Commonwealth
It can be challenging knowing how to help a family member or loved one that has exhibited signs of not being able to take care of themselves.
At times, a person’s declining condition can mean they are physically unable to undertake the tasks they once did. However, just as troubling can be a person’s decreasing ability to manage their own affairs. Conservatorships have gotten a lot of exposure in the media in the last few years, but in the Commonwealth of Virginia, they pertain to very specific legal arrangements. As described below, the notion of a Conservatorship has safeguards and checks and balances in Virginia to protect against the type of abuse that has received blowback. Additionally, the process for setting up a conservatorship can be involved. Thus, a conservatorship can in fact be a useful mechanism to ensure that a family member’s financial affairs are handled with care and consideration.
What is a Conservatorship?
For a Virginia court to create a conservatorship, a person must first be deemed “incapacitated person”—this means that they are found by a Court of law to be unable to understand, process, and assess information as would be needed to orchestrate their own care, needs, or financial arrangements. If a court finds that a person cannot oversee their own property, assets, and other accounts without assistance, or provide for any children, a Court may deem a person “incapacitated.” Notably, a showing of a person’s poor judgment alone, without additional information or evidence as to the extent, cause, or impact of that poor judgment, will be insufficient to rule a person incapacitated.
However, if a person is in fact deemed “incapacitated” in Virginia, a Circuit Court may appoint someone to manage the state and financial affairs of the Virginian.
In order to appoint a conservator, a petition must be filed with a Circuit Court alleging a need for someone to handle some or all of an incapacitated person’s business or personal affairs. The location of the petition’s filing is important as it should be heard in the same county as that in which the named incapacitated party lives or has moved to an institution or an assisted care facility.
A petitioner files a petition for the appointment of a guardian and/or conservator, which must include the information outlined in Va. Code § 64.2-2002. The Court will inquire to make sure that the incapacitated party for whom a conservatorship is being considered, listed as the Respondent in the petition, has received a copy of the petition and been notified of any hearing. Interestingly enough, a respondent has the right not only to be present at the hearing but also to request a jury trial, at which time they may present and cross-examine witnesses. Thus, particularly in light of the allegation that they cannot care for, and tend to their affairs, themselves, proof of service and notice are critical; the Court will often also require that the petition be served upon the incapacitated party’s nearest living relatives, whether that be a spouse, their adult children, their parents, or their brothers and/or sisters.
After a petition for a conservatorship is filed, the Court has 120 days from the filing of the petition to hold a hearing to determine the need for a conservator. Importantly, the standard for the Court to find a conservator should be appointed, to handle some scope of the respondent’s affairs, is “clear and convincing evidence.”
Of course, anyone who is named the respondent in a conservatorship proceeding has a right to counsel. However, it is important to distinguish two different types of attorneys who may represent an incapacitated party’s interests: (1) private counsel; and (2) a Guardian ad Litem. A respondent at a conservatorship hearing has the right to retain counsel to represent their perspectives and to seek a desired result of the conservatorship hearing process. At times, this counsel may also be hired by a family member to represent the respondent.
Yet, the Court also has the ability to appoint an attorney brought in for the sole purpose of advising the Court of their view on what course of action, and what decision, will best serve and protect the respondent’s rights and interests.
This counsel is called a Guardian ad Litem. They will customarily author a report chronicling what they believe to be the appropriate scope of duties and responsibilities for a conservator in a given situation, and what affairs should be included within the conservator’s authority. The report will be filed with the Court ahead of time, and the Guardian ad Litem will appear for the conservatorship hearing to explain the contents of their report.
A second report will also be generated from a medical perspective; a licensed physician, psychiatrist, or psychologist will perform an evaluation to better understand the respondent’s medical or mental health condition, specifically in the context of the prospective benefit of setting up a conservatorship. The report will highlight aspects of the respondent’s medical condition that may be relevant to a determination of the need or necessary scope of any conservatorship.
If a conservator is ultimately appointed, they must first qualify within a month after the Court’s ruling.
The conservator must certify to the Court that they will serve in that role, and they will likely meet with a representative of the court system to be installed. Conservators will also be required to obtain a surety bond, with the required value or amount of the bond determined in part by the scope and extent of the incapacitated person’s assets and estate. However, this bond may be paid out of the incapacitated person’s resources.
A conservator is tasked with doing any number of the following:
1) Filing tax returns;
2) Opening and closing financial accounts;
3) Paying bills and living expenses;
4) Buying and selling real estate and personal property; Managing assets and any incoming revenue or profits; and Investing and reviewing investments.
With the risk of abuse and fraud rampant, due to the entrusted oversight of the incapacitated person’s accounts, a conservator must file annual and sometimes quarterly reports with the Court detailing their financial decision making. At times, they must also seek approval for major financial decisions regarding the incapacitated person’s assets.
As a core principle, the Court does not like to take away an adult’s freedoms or liberty unless it is “clear and convincing” that it is necessary. Regardless of whether the incapacitated person or their closest relatives wish to oppose the petition, the Court must still follow this process, as it will protect the interest of the respondent, regardless of what support system they have in their lives.
A person whose medical or mental health imperils their ability to make independent decisions, such as may promote them as a possible candidate for a conservatorship, can also work to
address these potential issues. Specifically, a person can set up a “durable power of attorney” so as to appoint a specific acquaintance or individual to serve in a legal capacity. This can preempt the need for the court’s intervention at a later date after someone has been declared incapacitated by a Virginia circuit court.
If for any reason you or your loved ones have considered arranging for a conservatorship, or you are worried about an attempt to devise a conservatorship, a seasoned legal professional can be helpful to explain the process, protect your interests, and ensure that the outcome best serves the interests of all those involved. WhitbeckBennett PLLC stands ready and able to assist you with your conservatorship needs.