In our Estate Planning practice we assist our clients to take control of their affairs; choosing the who, when and how of their physical and medical care, their finances, and their long and short term goals for themselves and their loved ones.
Unfortunately, sometimes planning is not a viable solution: the elderly parent with dementia, the sibling or cousin afflicted with mental illness, the spouse who suffered a catastrophic injury, the juvenile son or daughter with significant physical and/or cognitive limitations, etc. People in these situations may not have the legal capacity to execute estate planning documents. While planning may not be an option, the needs of the affected loved one are no less significant.
Our attorneys have regularly been contacted by well-meaning family members who make requests for help such as: "I need a Power of Attorney so that I can care for my mother who is in a coma. Can you help me?" or "My father, who has Alzheimer’s Disease, needs a Power of Attorney so that I can manage his bank accounts and pay his bills. Can you draw one up for me?"
The sentiments that these requests encompass are heartfelt, but the person calling our office often misidentifies the actual help that is needed. A valid General Durable Power of Attorney or Healthcare Power of Attorney will allow a person to grant another person the authority to act on their behalf and make decisions concerning their care and finances and will often dispose of the need for Guardianship and Conservatorship proceedings. However, in order for these documents to be valid, such documents need to be executed by the person creating the documents at a time that the person can understand the documents and give their consent to granting someone else the authority to act on their behalf.
In other words, the person creating Powers of Attorney need to have the legal capacity to create the Powers of Attorney. Unfortunately, far too often, Powers of Attorney were never created and now that they are needed, there is an issue with the person’s capacity to create those documents. Additionally, while we rarely see this situation, some Powers of Attorney are not "durable," which means that the documents become ineffective when the person who created the Powers of Attorney loses capacity. In that situation, even if the documents are valid, they will not remove the need for Guardianship and Conservatorship proceedings.
If this is the situation that you find yourself facing, our attorneys can help you confront the challenges ahead. Our hands-on approach is focused on analyzing your unique situation and developing solutions that work for you and your loved ones, hopefully without the need for court involvement. However, if court intervention is required, our attorneys have experience filing for and securing the appointment of Guardians and Conservators both in Virginia and the District of Columbia. There are many procedural and statutory requirements when petitioning for guardianship or conservatorship, as well as a hearing in front of a judge, making it important to have experienced attorneys that can guide you through the process.
Incapacity:
A person is typically considered to be incapacitated if they are unable to manage their medical or financial affairs. Incapacity is evaluated differently depending on the jurisdiction, but generally, a person will be considered to be incapacitated if they are unable to evaluate information and make an informed decision. Incapacity can be partial or total. For example, a person could lack the ability to manage his finances but still be able to care for himself on a day to day basis, or a person could lack the capacity to do both. While not always the case, a person who is incapacitated will generally lack the ability to create valid estate planning documents.
Respondent/Ward:
During the court proceedings, and before a Guardian or Conservator are appointed, the allegedly incapacitated person is called a Respondent. After the court determines that the person is legally incapacitated and a Guardian or Conservator is appointed, the incapacitated person is called a Ward.
Guardian:
A Guardian is a person who is appointed by a court to manage the day-to-day affairs and the medical care of a Ward. A Guardian is entrusted and empowered with the ability to determine where a Ward lives, what medical care is administered, and managing other personal care/day to day activities. A Guardian can be a family member, a close friend, an attorney, or any other person that the Court believes is appropriate.
Conservator:
A Conservator is a person who is appointed by the court to manage the finances of a Ward. A Conservator is entrusted and empowered to manage real and personal property, money, and financial accounts, to contract for services, to pay bills, make purchases, and sell assets for the Ward’s benefit. A Conservator can be a family member, a close friend, an attorney, or any other person that the Court believes is appropriate. While the Conservator can be the same person as the Guardian, that is not a strict requirement and the two roles can be filled by different people. Generally, the Conservator will be required to post a bond, which is a form of insurance, with a value equal to the assets being managed and will be required to file annual accountings detailing the financial transactions that have occurred over the past year.
Guardian ad Litem:
A Guardian ad Litem is an attorney appointed by the court to do an independent investigation to determine if guardianship and/or conservatorship are appropriate. While the Guardian ad Litem is charged with representing the best interests of the Respondent, the Guardian ad Litem does not actually represent the Respondent, i.e. there is no attorney-client relationship between the Guardian ad Litem and the Respondent. The Guardian ad Litem's duty is to do the investigation and make a written report to the court explaining the Guardian ad Litem's opinion on whether guardianship/conservatorship is appropriate, whether the proposed Guardian and/or Conservator are good candidates, and what the living situation of the Respondent should be, among other things.
If you believe that someone you care about may need a Guardianship and/or Conservatorship, or if you have concerns about the adequacy of a loved one's existing Powers of Attorney, please contact our office and schedule an Initial Consultation with one of our attorneys.
