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Elder Law

Planning for Incapacity

Estate planning attorneys are frequently contacted by family members or friends who are concerned about the well-being of a loved one.  Sometimes a person has suffered an accident or a stroke, or has been incapacitated as the result of an illness, such as Alzheimer’s or another form of dementia. Unfortunately, incapacity can impact anyone, and even the young can become incapacitated as a result of an auto accident, head injury or other medical condition.

An incapacitated person is someone who is unable to make decisions without assistance; it does not refer to someone who makes poor decisions.

Estate Planning for Incapacity

Most people equate estate planning with death planning; they understand that estate planning documents specify who will administer their estate upon their death, and who will receive the assets of their estate.  Many people do not realize that a comprehensive estate plan also provides a plan for incapacity- documents such as durable powers of attorney and advance medical directives allow a person to specify who will make financial and medical decisions on their behalf in the event of incapacity. In the event an incapacitated person has not created these estate planning documents, it may be necessary to petition the court for a guardianship of the person and/or conservatorship of the estate.

Since the imposition of a guardianship and/or conservatorship removes a person’s right to make decisions for himself or herself, it is viewed as an option of last resort and is only granted by the court when there are not any less restrictive alternatives available.

Guardianship

A guardian is responsible for making decisions regarding the person’s health and personal care.  The guardian’s authority can be very broad, or may be limited to making specific decisions, usually based on the ability of the incapacitated person to care for some of his or her own personal, health and safety needs.  The extent of the guardian’s authority is set forth in the Virginia Code and the judge’s order establishing the guardianship.

Conservatorship

A conservator manages an incapacitated person’s property and financial affairs.  Similar to the authority of a guardian, a conservator’s authority may be limited depending on the ability of the incapacitated person to make decisions on his or her own behalf.

Helpful Resource Regarding Guardianships and Conservatorships

The Virginia Guardianship Association, in conjunction with the Virginia Center on Aging, the Virginia Coalition for the Prevention of Elder Abuse, and the Virginia Department for the Aging, has published a booklet on Guardianships and Conservatorships in the State of Virginia.  The booklet outlines alternatives to these proceedings, including the use of trusts, powers of attorney and advance health care directives, and answers many frequently asked questions about these proceedings.

Additional Resources:

National Academy of Elder Law Attorneys

Virginia Academy of Elder Law Attorneys

Medicare

Virginia Medicaid

Retirement Living SourceBook

Virginia Center on Aging

Alzheimer’s Association National Capital Area