Qualification

Petition to the Henrico County Circuit Court for Appointment of Conservator and/or Guardian

The Virginia Code provides the statutory requirements for the appointment of a conservator or guardian of an incapacitated adult.  Section 64.2-2001, et seq., Code of Virginia (1950), as amended.  These statutory provisions should be reviewed prior to petition to the Henrico County Circuit Court and generally the services of a qualified elder law attorney will be required for the filing of the petition and the necessary Court hearing.  The procedure may be adversarial, especially where the incapacitated person does not believe he or she is incapacitated or where there is disagreement among family members as to the need for appointment of a conservator and guardian or disagreement over the person to be appointed as conservator and/or guardian.

Guardianship

Guardianship is the appointment of a qualified individual, or corporation, to have the authority to make decisions which the incapacitated adult ordinarily would make on their own behalf in respect to living arrangements, medical care, and other life decisions.  Guardianship substitutes for the incapacitated adult the judgment of the person appointed as guardian due to the incapacity of the adult.  Incapacity may be any number of disabling medical conditions.  Incapacity may be mental or physical.  Guardianship, therefore, is not always total guardianship and control over the life decisions for the incapacitated adult.  Quite often guardianships are “limited” and are designed for specific purposes in order to give the incapacitated adult as much control and as much participation in his or life as  may be proper under the circumstances of his or her incapacity.  The guardian should always be sensitive to the expressed wishes of the incapacitated adult where there is not a total incapacity. 

The order of appointment of a guardian is critically important in stating the powers of the guardian.  The guardian should frequently review the powers granted by the Henrico Circuit Court order and should exercise only those powers granted under of the order of appointment and specific statutory powers.  If additional powers are needed on a date after the original appointment, a subsequent petition should be filed seeking additional powers of guardianship.

If an incapacitated adult is restored to capacity, the guardianship should be terminated by order of the Henrico County Circuit Court.  Otherwise, the guardianship will continue during a period of time which is unjustified, and potentially creates problems for the incapacitated and possibly for the guardian. 

Note that the office of the Henrico County Commissioner of Accounts has no authority over guardians for incapacitated adults.

Since the guardianship of an incapacitated adult does not deal with financial matters or the property and assets of the incapacitated adult, there is no supervision by the Commissioner of Accounts.  However, there is supervision by the Department of Social Services and an annual report of the guardian for an incapacitated adult is required to be filed with the Henrico County Department of Social Services.  The report to be filed is Form CC-1644.

Conservatorship

A conservator is appointed to take charge of and manage, for the benefit of the incapacitated, all of that persons assets and income, and is responsible for the payment of the persons lawful obligations.  Section 64.2-2021, and following sections, Code of Virginia (1950), as amended, deal with the general duties and liabilities of a conservator. 

The general requirement of a conservator is that he or she exercise reasonable care, diligence and prudence to act in the best interests of the incapacitated person.  The conservator is appointed by the Henrico County Circuit Court to be in charge of the financial affairs of the incapacitated person.  The conservator, once appointed, is governed by the above referenced statutory provisions and the Order of Appointment of the Henrico Circuit Court.  It is very important that the conservator frequently review the Order of Appointment to be sure that the conservator is exercising powers which have been granted specifically  by the Henrico County Circuit Court or by reference to the statutes of Virginia. 

As with guardianships, the appointment by the Circuit Court may be a broad general appointment of a conservator to take charge of the assets of the incapacitated adult or may be limited in its nature.  If limited, the conservator must abide by the limited terms of the Court order and shall exercise no authority other than that granted by the order.

As with guardianships, if the incapacitated adult is restored to capacity, the conservatorship shall be terminated by Court order on petition to the Henrico County Circuit Court.

The appointment of a conservator generally requires the assistance of a qualified elder law attorney who is experienced in the area of incapacitated adults and the requirements of the Court for the appointment of guardians and conservators.