Guardianships and Conservatorships for the Mentally Ill
When a person is unable to make their own decisions regarding health care or handle their own finances, a relative or another individual may be able to take over this responsibility for them. When the court decides a person needs help and appoints someone to manage their affairs in their place, it is known as a guardianship (involving health care and other matters) or a conservatorship (regarding financial decisions). Often, the same person will be granted both a guardianship and a conservatorship over the incapacitated individual. Appointment as a guardian or conservator can be a useful tool when caring for a family member or loved one. However, the court does not take lightly the decision to give someone autonomy over an individual’s life. Learn more about the process of obtaining an adult guardianship or conservatorship appointment in Virginia.
Who Needs a Guardianship or Conservatorship?
An adult may need a guardian or conservator when he or she is unable to manage his own affairs. Often, this happens when an elderly person develops dementia, Alzheimer’s disease, or mental deterioration. Younger adults may also need assistance, if they suffer from severe mental illness. Psychosocial disorders that could require guardianship include schizophrenia, depression and anxiety disorders, and addiction. Other medical conditions that may cause an adult to become mentally incapacitated include traumatic brain injury (TBI), coma, and developmental disabilities.
However, the court cares less about an individual’s specific diagnosis than the degree of impairment that suggests a need for guardianship/conservatorship. A mentally ill individual may need a guardianship or conservatorship if he or she is:
- neglecting personal needs like food, shelter, or hygiene
- refusing medical treatment and/or medication
Limitations of Guardianships and Conservatorships in Virginia
Many of those suffering from mental illness experience symptoms intermittently, which can make it difficult for the court to determine the need for guardianship. Virginia law prevents a guardian from forcing a mentally ill person into involuntary care, and mentally ill individuals often resist the help of a guardian. A guardian will not be able to hospitalize or medicate a person against his will. These limitations are put in place to protect an individual’s freedom to the largest extent possible without endangering his safety. However, the Court can grant a guardian the right to seek hospitalization and care on behalf of the mentally ill person and have access to the medical records.
The Process of Establishing a Guardianship or Conservatorship in Virginia
To request guardianship or conservatorship over a mentally ill individual, one must file a petition in Circuit Court in the county in which the incapacitated person lives. The court will appoint a guardian ad litem to file a report recommending the best interests of the respondent in your case. The report will include a medical and psychological evaluation that considers the following:
- the individual’s level of independence and self-reliance
- the petitioner’s suitability as guardian and/or conservator
- the appropriateness of any less restrictive measures, such as power of attorney
A hearing will be held, and the judge presiding over your case will determine if the individual is able to meet the essential requirements of his health, safety, and financial affairs without assistance. The judge will also decide if you, as the petitioner, are the right person to assume this responsibility.
Guardianship and Conservatorship Attorneys in Loudoun County VA
For legal assistance, contact the attorneys at Whitbeck Cisneros McElroy P.C. Our office in Leesburg, Virginia serves the communities of northern Virginia and the Shenandoah Valley.