Basis of Conservatorship and Guardianship

The Commonwealth of Virginia has legal power to protect persons with disabilities under the Parens Patriae doctrine (“parent of the nation” doctrine).  This doctrine has its roots in English Common Law and applies to the treatment of children, mentally ill persons, and other individuals who are legally incompetent to manage their affairs.  Therefore, the state that is acting as parens patriae, can make decisions and appoint guardians and conservators for a person because the state is protecting the health, comfort, and welfare of the people. 

However, taking away civil rights of a person can only be done when no alternative is available.  The statutes on Guardians and Conservators are found under Va. Code Ann. §37.2-1000 et Seq.  

Under the Virginia Code, a Guardian is “…a person appointed by the court who is responsible for the personal affairs of an incapacitated person, including responsibility for making decisions regarding the person's support, care, health, safety, habilitation, education, therapeutic treatment, and, if not inconsistent with an order of involuntary admission, residence.”  So, a guardian is in charge of the person, while a conservator is in charge of the finances. 

The Virginia Code defines a Conservator as a “…person appointed by the court who is responsible for managing the estate and financial affairs of an incapacitated person.”

A Guardian and a Conservator are appointed to take care of a person declared incapacitated, which is defined under Virginia Code as “…an adult who has been found by a court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator. A finding that the individual displays poor judgment alone shall not be considered sufficient evidence that the individual is an incapacitated person within the meaning of this definition. A finding that a person is incapacitated shall be construed as a finding that the person is "mentally incompetent" as that term is used in Article II, Section 1 of the Constitution of Virginia and Title 24.2 unless the court order entered pursuant to this chapter specifically provides otherwise.”

Because civil rights and liberties are removed from a person, guardianship or conservatorship should only be considered as a last resort.  This “least restrictive alternative” doctrine has been incorporated into the Uniform Guardianship and Protective Proceedings Act.[3]  Under this doctrine, the attorney should first search for already executed documents and if there are none, then assess whether the individual has enough capacity to execute such documents.