Guardianship/Conservatorship for Minors The rules of guardianship of minors can be found under Title 31 of the Code of Virginia, called “Guardian and Ward.” Notice the difference between a “Guardian” (one role) for the person and for the estate of the minor, whereas for a disabled adult there is a “Guardian” for the person and a “Conservator” for the estate (two roles). Who Can Be a Guardian? The father and mother of a minor are the joint natural guardians of the person of the minor. They have equal legal powers and rights. Upon the death of one parent, the other is the sole guardian. The parents can under a Last Will and Testament designate a guardian for the person and a guardian for the estate of the minor, in the case that both parents are dead. However, this appointment will be void if the person renounces or fails to appear in the court within six months after the filing of the Will and give appropriate bond. Va. Code Ann. §3105 provides that if the minor is 14 years of age or older, his/her consent is required. Parental Duty of Support Because the parents have a duty to support their child, they cannot use the estate of a minor for fulfilling their duty of support.[17] They cannot charge rent, use the trust assets to pay for foods etc. However, the trust instrument may provide otherwise, or the court may, upon a finding that the parent is unable to completely fulfill the parental duty of supporting the child, authorize distribution from the estate in order to provide such support. The guardian of the estate is subject to filing an inventory and accountings with the Commissioner of Accounts. If the expenditures exceed $3,000 in a year, the guardian will have to explain the reason and the commissioner will explain the necessity for the distribution to the court.[18] The guardian of the estate of the minor shall seek court authorization for annual expenditures above $3,000 per year. Powers of the Guardian Under Va. Code Ann. §64.1-57 and §31.14.1, the guardian has similar powers as a fiduciary. In addition, the guardian may ratify or reject a contract entered into by the minor. The other requirements are similar as the one for a disabled adult discussed in further detail hereinafter. Termination of the Guardianship Upon the minor reaching the age of majority, the guardianship may terminate and the guardian shall deliver and pay all the estate and money in his/her hands or with which she/he is chargeable to the new adult.[19] | Guardianship/Conservatorship for a Disabled Adult Role and Duties of a Guardian for a Disabled Adult Once the court order is issued, the guardian will need to take an oath before the clerk of the court. Often, only a nominal bond of $1,000 is requested from the guardian. During the meeting, the guardian will receive a Certificate of Qualification with a copy of the court’s order. This order will be forwarded to the local Department of Social Services in the jurisdiction where the incapacitated person resides. Once appointed, the guardian will be in charge of making decisions regarding the person’s support, care, health, safety, habilitation, education, and therapeutic treatment. Sometimes, the guardian will even have the power to commit the person to a psychiatric facility for no more than 10 days, pursuant to the provisions of Va. Code Ann. §37.2-805.1. The guardian will have to file within six months of the appointment a report of the four first months of guardianship. This report will be filed with the local Department of Aging. Then, an annual report shall be completed and filed with the Department of Aging. The guardian has a duty to maintain contact with his/her ward. The guardian should involve the ward and make the ward participate in rehabilitation. The ward’s desires should be considered when making decisions. However, the guardian cannot be held liable for the acts of the ward, nor required to expend personal funds on behalf of the ward. Finally, the guardian will be responsible for making end-of-life decisions. Although the guardian has extensive powers, the guardian must seek prior court authorization to change the ward’s residence to another state, to terminate or consent to a termination of the ward’s parental rights, or to initiate a change in the ward’s marital status.[20] Compensation issues need to be addressed. There is no provision in the Virginia Code for the compensation of a guardian. For non-professional guardians, Commissioners of Accounts have accepted a $50 per hour compensation. Role and Duties of a Conservator for a Disabled Adult Once the court order is issued, the conservator will need to take an oath before the clerk of the court. If there are assets, a surety bond will be set. The duties and responsibility of the conservator are set under Va. Code Ann. §37.2-1022 et seq. The conservator shall “exercise reasonable care, diligence, and prudence and shall act in the best interest of the incapacitated person. To the extent known to him a conservator shall consider the expressed desires and personal values of the incapacitated person.” It is a fiduciary relationship, where the conservator will administer the estate of the incapacitated person. The conservator will file inventories and accountings with the commissioner of accounts. The first inventory is due within four months from the date of the appointment, and the first account of the first four months of the conservatorship is due within six months of the appointment. The other accounts, covering a 12-month period, are due annually. Instructions for filing the conservator inventory can be found on the Commissioner of Accounts’ website at http://www.fairfaxcommissionerofaccounts.org/open/docs/cc1671inst.pdf and instructions for the accounting can be found at http://www.fairfaxcommissionerofaccounts.org/open/docs/cc1682inst.pdf Please note that generally the conservator does not have power to sell real estate. Va. Code Ann. §37.2-1023 (B) provides that the conservator shall: (1) secure an appraisal of the real estate or interest, (2) give notice to interested parties, (3) consult with the commissioner of accounts and with the guardian if one has been appointed, (4) use the real estate agency for the listing of the property, and (5) have the bond increased accordingly. In addition, unless provided in the court order, the conservator cannot revoke or limit his/her ward’s durable power of attorney.[21] Alternatively, a conservator may support the spouse and legal dependent of the ward without court order, and may do so to the extent that such support does not deprive the ward.[22] The first steps for the conservator, once appointed, will be to go to the post office to change the address for the incapacitated person’s mail. Next it will be to go to the bank and make an appointment with Social Security in order to be appointed representative payee if the ward is receiving social security benefits. Basically, the conservator will have to take possession or charge of all of the assets of the ward, and check that appropriate insurance or coverage is in place. Each Commissioner of Accounts issues guidelines regarding the compensation of conservators. The Commissioner of Accounts for Fairfax County considers a reasonable compensation the following fee: First $500,000 of assets, a fee of 1% Next $500,000 of assets, a fee of ¾ of 1% Balance over $1 million, a fee of ½ of 1% Balance over $10 million, prior consultation with the Commissioner is required |