Guardians & Guardian Ad Litems, in Virginia Incapacity Cases[1]
By Gerarda M. Culipher, Esq.[2]
When families face the steep-grade of an aging matriarch/patriarch, sincere worry about their safety and independence sets-in. Precisely because America’s Greatest Generation worked so hard, lived so well, and chose so wisely, they can be asset-rich in their old-age. Rightly, family and friends focus not only on the Elder’s declining mobility, stability, and health, but also watch for their shrewdness, their awareness, in a scam-heavy, digital world. Now, not all octogenarians are made equal; and the capacity for self-care is as personal, as each person. We marvel at a fiercely independent 90-year-old, who can still call balls and strikes and hit rhetorical- homers. Taught to respect our elders, families understandably hesitate when ‘declined’ morphs into ‘diminished.’ But respecting, can come by way of protecting.
The Humility of Planning Early, Before Decline Takes-Over
There are several practical and legal techniques for protecting our older loved-ones, which can and should be built beforesubstantial loss of mental capacity. On the practical side, some families choose multi-generational living which puts a familial moat around Grandma; others choose residential care facilities, which offer formal/institutional guardrails against exploitation. Some families go the legalistic route and establish a family Trust, which creates a bullpen of trustworthy kin or professional firms, who are poised to manage the Elder’s affairs, as the need arises. And most commonly, many make their delegation of power early-on in the aging process, through a good, strong Power of Attorney. Power of Attorney documents often include specific direction that, if a capacity case eventually comes to the Court, the Judge is to appoint the Agent from the POA document as the preferred Guardian and Conservator, reflecting a deference to the Elder who had made a considered choice when they were mentally-sharp and feeling well. For most families, a mix of these techniques, can be enough to keep everyone safe.
The Nuclear Option: Going to Court for Guardianship
But, in the absence of (or the inadequacy of) these options, friends of an Elder may have no choice but to petition the Court for Guardianship and/or Conservatorship, depending on the rapidity of the decline, and the Elder’s baseline ability to care for themselves and/or their finances. Virginia takes a liberal approach to who can claim another person is unfit for freedom. “Any person[3]” can file a petition in the Circuit Court of the county where the Elder resides, seeking a determination of legal incapacity from a judge, in what becomes a public record. The Petitioner can be a neighbor, a friend, an adult-child, or even a hospital/nursing home already caring for the patient. But, that “anybody” who marches into Court seeking this extraordinary revocation of a citizen’s rights, has an affirmative obligation to notify all the Elder’s “people” like their spouse, kids, siblings, parents, or other relatives…basically all the folks who would qualify as the “heirs at law” under Virginia’s intestate succession statute.[4]
Once a Petition is filed with the Circuit Court, the Elder is now termed “the Respondent,” and they have the right to their own lawyer, to fight the incapacitation litigation, and to protect their good-name in the public record. But because a diminished state is necessarily an allegation essential to these types of civil actions, Virginia adds another layer of protection for the presumption of autonomy. Enter…the Guardian Ad Litem, the “GAL.[5]” The GAL acts as a protector of the process; almost like a “two-factor authentication” for your civil liberties. The GAL ensures no bad actors are seeking to exploit an older person, through a self-serving claim of loss of mental capacity, prompting a take-over of the accounts.
Guardian For The Suit: The GAL’s Role as Protector of The Process
Virginia thinks so highly of a citizen’s civil liberties (like the right to support a bad candidate, the right to say ridiculous things, the right to marry the wrong person, the right to disinherit at whim, the right to invest in lost causes, and the right to travel to exotic places) that it creates this middleman. Eccentricity is not incapacity; illness is not clueless; and declined is not diminished.
The Guardian Ad Litem (Latin for guardian “for the suit,”) is a specially trained Virginia-barred attorney, selected by the Judge to go out and visit the Elder, and who must make an independent evaluation of whether the person is actually unable to care for themselves and their affairs. The Guardian Ad Litem is NOT the Guardian.
Many people get confused with these similar-sounding, court-terms. The person first asking the Court to declare the Elder incapacitated (“the Petitioner”) is often offering themselves to become the “Guardian of the Person and Conservator of the Estate” by the end of the lawsuit. The court-appointed Guardian Ad Litem (GAL), by contrast, is only pinch-hitting for the Court itself, and taking a fieldtrip to investigate facts about the condition and circumstances of the Elder, that no Judge is permitted to do.[6] And, while the GAL has ethical obligations to the Virginia Supreme Court (as a specialized lawyer) and to the trial Court (under its commission/appointment), the GAL is not a ‘fiduciary’ of the Elder. That means that the GAL is not responsible for the Elder’s affairs…only responsible to the Elder’s right to process that the statutory rigors of an incapacity case require. Compare that GAL’s procedural role, to the Petitioner who, if successfully-named as the Guardian & Conservator at their court-hearing, has a detail-heavy, substantive role in the Elder’s life thenceforth. The Guardian’s caretaking role is understood in the law as a fiduciary duty; ie: to serve as a responsible steward of this precious person and their entire life’s savings. A hefty business indeed.
Qualifying as a Fiduciary: Accountable Access to Another’s Bounty
After the case is opened by the Petitioner, and the GAL is appointed and goes to visit the Elder and submits their confidential GAL Report to the Judge, the Court has a hearing at the courthouse. Virginia does not demand that the ill and the elderly (the Respondent) physically attend the hearing, although of course they can attend the hearing.[7] If all of the Elderly Respondent’s protections of process have been observed, and the Judge determines the statutory demands have been met, an order of incapacity is entered.[8] Depending on the contours of the order, it gets sent to various agencies, including the DMV, the State Police and the State Board of Elections.[9] Much independence is lost in a Guardianship case.
But much oversight is gained, once a Guardian is appointed by the Court. The new Guardian/Conservator isn’t done at the Judge’s courtroom. Many people mistakenly think that is the end of the matter. No, the Court Order of Incapacity only initiates the new workload. The newly-appointed Guardian/Conservator has to appear before the Clerk of the Circuit Court, and vouch that they will responsibly access, spend, and account for the Elder’s money and properties, by posting a surety bond. This bond protects the Estate from a sliding fealty. To prevent any sloppiness of purpose, Virginia also requires that this “fiduciary” account for the Elder’s assets to yet another governmental entity: the Commissioner of Accounts for that Circuit. Where Virginia grants access, she requires accountability.
Conclusion
There is humility in facing decline, head-on. Between familial care, residential living safeguards, and/or early planning with a Power of Attorney or Trusts, families can protect their Greatest Generation. But when those techniques fall short, Virginia law permits what is called a “Guardianship/Conservatorship” civil action in the Circuit Court. As part of that litigation, the Court appoints a Guardian Ad Litem (GAL) who independently evaluates the Elder’s condition and capacity, to ensure that the statutory rigors for revoking a person’s civil liberties are met. Based in part on the GAL’s report to the Judge, and after a hearing, the Court may issue an order of incapacity and name a Guardian. The appointed Guardian/Conservator then has to qualify as a fiduciary, promising to put the Elder person’s best interests at the very top of all they do with the finances and the care-plan. That fiduciary duty is kept-honest by the Guardian’s on-going accounting requirements with the local Commissioner of Accounts. In this way, Virginia helps families respect our Elders… by protecting our Elders.
To learn more about how your family can face aging head-on, contact Dominion Law Group, LLP by phone at 703-865-2525 to schedule an appointment. Or find us on-line at Dominion Law Group, LLP – Estate Planning, Business Formation and Probate Legal Counsel in Great Falls and Leesburg, Virginia, for more information.
[1] Artwork by Kelly Green, reprinted with permission. For more work from The Kelly Green Gallery, State College, Pennsylvania, see: kelly green fine art.
[2] Gerarda M. Culipher, Esq. is barred in Virginia and DC. While this article is intended to share legal information, it should not be considered legal advice for a specific circumstance, or reflect the practice and habits of every circuit court in the Commonwealth of Virginia. Every family, every person—just as every courthouse–presents a unique and specific set of needs, circumstances, and lawshyperlinks to Code sections cited herein may change over time).
[3] § 64.2-2002. Who may file petition; contents
[4] § 64.2-200. Course of descents generally; right of Commonwealth if no other heir
[5] § 64.2-2003. Appointment of guardian ad litem
[6] Virginia Canons of Judicial Ethics, Canon 1, Part L. Virginia Judicial Ethics Canons.docx
[7] And, naturally, a Respondent whose basic liberties hang in the balance can have a lawyer fight-like-hell for them. See: § 64.2-2006. Counsel for respondent
[8] For young adults with certain medical or intellectual disabilities, Virginia law now requires the evaluation of the young person’s IEP plans and weighing of the ‘less restrictive’ means of accomplishing protection-goals contemplated in the Guardianship Statute, which empowers these young adults’ personal autonomy. § 64.2-2009. Court order of appointment; limited guardianships and conservatorships This article focuses on older Virginians who may be declining into terminal, cognitive-impairment.
[9] § 64.2-2014. Clerk to index findings of incapacity or restoration; notice of findings
