Is there a way to avoid guardianship or conservatorship?

On Behalf of | Mar 8, 2024 | Guardianship and Conservatorship |

Most adults in Virginia have the legal authority to manage their own affairs. Once someone turns 18, they have their own financial responsibilities and control over their medical needs. Even if they still live with their parents, their parents can’t control what they do with their money, what education they pursue or what medical care they receive.

However, some adults eventually lose that personal authority due to health challenges. Members of their families or even care providers could determine that they do not manage the responsibilities of independent living properly. They might seek to take legal action, ostensibly for the protection of that vulnerable adult.

A guardianship grants someone responsibility for someone’s daily life, including their living arrangements and healthcare choices. A conservatorship gives someone authority over another adult’s resources. Is it possible for people in Virginia to establish estate plans that protect them from the risk of an involuntary guardianship or conservatorship?

The right documents let someone choose their own support system

So long as someone begins estate planning early enough, they could put documents in place that protect them should they experience an incapacitating medical issue in the future. Someone who has not yet lost their testamentary capacity could draft durable powers of attorney.

Unlike standard powers of attorney, which may lose their authority after someone becomes permanently incapacitated, durable documents include language that ensures they can remain in effect as long as someone is still alive. Even in scenarios involving long-term or permanent incapacitation, durable powers of attorney can dictate who has control over medical or financial matters for the principal who drafted those documents.

Virginia does recognize durable powers of attorney when someone conforms to state law during their creation. The agent or attorney-in-fact that someone trusted to manage their affairs can serve the same role that a conservator or guardian could for a vulnerable adult in need of support from others.

There are numerous other estate planning documents that can give someone a degree of protection if they experience incapacity as they grow older or after some type of medical emergency. Adding durable powers of attorney to a Virginia estate plan is just one of several decisions that can minimize someone’s vulnerability later in life.


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