When parents of a differently abled adult child are no longer able to care for the child, or when an aging adult is no longer able to care for themselves, a guardianship may be necessary. Without proper planning or appropriate estate planning, court action is necessary to appoint the appropriate person to care for and act on these persons behalf. At Van Hooser & Aguirre, P.C., our elder law attorney will walk you through the process to secure guardianship for your differently abled child as they reach eighteen or an incapacitated adult.
Contact us by filling out the online form or contacting us directly at 703-659-4402 to schedule a Consultation. We want what's best for you and your family, and preparing for the future through a guardianship is critical to that end.
What Constitutes a Guardianship in Virginia
Guardianship is legal authority provided to a specific person to make decisions for another person. Typically, guardianships are necessary when a differently abled child reaches adulthood or an incapacitated adult who is unable to care for themselves. The person with legal authority over the person is referred to as the “guardian.” The subject of the guardianship is referred to as the “protected person” or “ward.”
Endowed with legal authority, the guardian is responsible for the well-being and care of the ward and can make decisions about the ward's:
A Financial Guardianship may also be necessary when a child inherits funds or life insurance proceeds. The guardian will manage these assets until the child is an adult.
Reasons a Guardianship Might be Needed in Virginia
If an adult fails to execute a power of attorney or advance medical directive, and becomes incapacitated they will need a guardian appointed. Differently abled children who are approaching their 18th birthday, if they are not capable of executing a Power of Attorney, may need a guardian to continue their care. Parents almost always have the legal right to make decisions for their children unless parental rights have been terminated. When parents cannot make those decisions, someone must step in to do it. This often happens when both parents have died or when both parents are incapacitated in some way by illness or injury. It can also be a situation where one parent has died or has no parental rights while the other parent is incapacitated.
Who Can Be Appointed as a Guardian in Virginia
To become a guardian of an incapicated adult, one must file a Petition for Guardianship with the Circuit Court. A guardian should be someone who knows the ward and is able to care for them. There are professional guardians for those who do not have a family member or friend to be their guardian. For a child whose parents have died, the guardian is will often depend on whether or not a guardian was designated in a living will or last will and testament. If neither of the latter was created, the court will appoint a guardian.
Factors that Disqualify a Person as a Guardian
Not all people can be guardians. Examples of when a person does not qualify as a guardian include but are not limited to people who:
- Are incompetent (e.g., cannot care for themselves properly)
- Are a minor
- Have been convicted of a felony (unless the court states otherwise)
- Have committed violent crimes or offenses involving some type of abuse against a child, spouse, parent, or another adult
- Have been suspended or disbarred from a profession that requires a state license and involves the management of money
If you have a differently abled child who is approaching eighteen, or a family member who is incapable of caring for themselves, ensuring their continued care is essential. A guardianship is one way to secure their livelihood and futures in a way that aligns with your family's values and customs. Our estate planning attorney will help you identify what components will work best in your estate plan, whether it includes guardianship as well as other tools, like a trust. Contact us today either online or at 703-659-4402 to schedule a Consultation and learn more.