What Should I Do If My Family Member Becomes Incapacitated and They Do Not Have Any Estate Planning?

It’s a common piece of advice that financial planners and attorneys always give their clients: make sure you have your estate planning in place. In Virginia, this usually includes a will, power of attorney, and an advance medical directive. These documents, particularly the advance medical directive and power of attorney, play an important role while you are alive. Think of a situation where a close family member is in a coma, or is no longer mentally sound to make their own decisions concerning healthcare or finances, and never executed a power of attorney or advance medical directive. How would you access their bank accounts, pay their mortgage or rent, and make sure they are receiving the healthcare they desired while they were still of sound mind?

Virginia laws provide a remedy for this type of situation. A party can file for what is called conservatorship and guardianship over another person. A conservator is a person appointed by the court who is responsible for managing the estate and financial affairs of an incapacitated person. A guardian is a person appointed by the court who is responsible for the personal affairs of an incapacitated person, which includes the healthcare decisions for an individual.

What does this process look like? First, an attorney for the incapacitated person will be appointed, who is known as a guardian ad litem. This person conducts an investigation and makes a recommendation as to what they believe is in the incapacitated adult’s best interest. Second, the treating doctor for the incapacitated adult will have to submit evidence that the adult is unable to manage their affairs. Third, a court hearing will be required at which point a judge will determine whether or not to grant the guardianship or conservatorship.

The decision to file for a guardianship or conservatorship should not be taken lightly, as it is expensive and entails a significant loss of liberties for the incapacitated adult, which includes the right to vote and drive. So what should you do if you’re faced with this type of situation, or how do you prevent it from happening in the first place? Call me at 804-320-6600 or e-mail me at jbaez@hmalaw.com to find out. Yo hablo Español.

This post is provided as an educational service and should not be construed as legal advice. Readers in need of assistance with a legal matter should retain the services of competent counsel. 

Jesse Baez