Guardianship F.A.Q.
Frequently asked questions about The Arc’s Guardianship program
Q: What is the difference between a guardian and a conservator?
A: A guardian is a person appointed by the court who is responsible for the personal affairs of an incapacitated person. A conservator is a person appointed by the court who is responsible for managing the estate and financial affairs of an incapacitated person.
Q: Do I need to become his or her guardian and/or conservator?
A: It is critical to remember that guardianship takes away all rights an individual has; including the right to vote, the right to get married, the right to sign contracts, the right to make medical decisions and the right to rent an apartment. Therefore it is important to ask yourself what you want to expect if you or an agency becomes a guardian. For best practices, we encourage you to consider least restrictive alternatives first, prior to implementing full guardianship.
Q: I have looked at all the alternatives and feel that I should move forward with either full guardianship, limited guardianship and/or conservatorship.
A: To move forward there needs to be a petition sent to your local court. This is completed after consultation by an attorney. You can access an attorney yourself or ask the individual’s case worker if they have any resources to assist you in that process.
Q: My brother needs a guardian and a conservator and I would prefer not to be that person, do I have any options?
A: Before choosing to become a guardian and/or conservator it is critical to fully understand the duties and responsibilities of each role. These can be time consuming so it is important to be honest with yourself about the time, energy and skills that you will need to have to take on this role. It is also important to consider the impact this guardianship/conservator role will have on your relationship with your loved one.
Q: What alternatives are available?
A: Durable medical power of attorney. This authorizes the appointed person to make medical decisions as well as receive information on behalf of the individual.
Limited Guardianship
Guardianship often include “full guardianships” meaning that ALL rights of an individual are taken away and all decisions are left to the court appointed guardian. Limited guardianship can specifically designate what decisions the court appointed guardian is responsible for and what decisions the incapacitated individual can continue to make on their own. For instance, if you are pursuing guardianship for the purposes for medical decision-making and financial purposes only, then the court order can specify that the incapacitated person will retain his or her right to vote, get married and rent an apartment, etc.
Representative Payee or Conservatorship
If you are thinking of becoming the guardian and conservator for an individual for the sole purpose of handling finances, there are two alternatives. These include becoming the representative payee or conservator.
Representative Payee
A Representative Payee is an option if the individual is receiving Social Security Benefits only. This is a designation that can be obtained with a medical professional’s recommendation and a determination by your local Social Security Administration Office.
Conservatorship
A Conservatorship is obtained through legal proceedings. This can be petitioned for when the individual has financial resources or an estate beyond Social Security Benefits.
For additional information about guardianship there is a Virginia Handbook for Guardians and Conservators by John T. Molumphy, III and Harriette Shivers. This book is available from the Virginia Guardianship Association or The Arc of Northern Virginia.
Resources
The Arc of Northern Virginia has developed a Guardianship Checklist for those considering Guardianship. Thinking about Guardianship checklist”
Your local Community Services Board (CSB) may be a resource for you. The CSB’s may have guardianship services where volunteers serve as guardians.
There are also Public Guardianship programs (such as ours), throughout the state. Contact the Virginia Guardianship Association for a listing of local providers. Many of the Public Guardianship Programs, including ours have private pay guardianships as well. Therefore, we would encourage you to call the programs to inquire about their services. Additionally, attorneys often serve as guardians as well.
We serve as public guardians for a limited number of individuals who are indigent and have no family or loved ones who can serve as their guardian. Our Guardianship of Last Resort (GOLR) program is contracted with the Department of Aging and Rehabilitative Services (DARS).
- Any professional associated with the individual who requires a guardian/conservator (e.g. case worker, social worker, attorney, therapist, etc.) can make a referral. If the individual has an intellectual or developmental disability, the professional can contact Cynthia Smith at the Virginia Department of Behavioral Health and Developmental Services (DBHDS) at (804) 786-0946 or smith@dbhds.virginia.gov in order to place that individual on the state waiting list. The professional will fill out a form including basic information including the individual’s name and the guardianship program they are requesting. It’s important to note that Cynthia will look at all public guardianship programs within the state and refer the individual to one of the state public guardianship programs, so there is no guarantee that the person will be served by The Arc of Northern Virginia.
- If the individual has a mental health disability or is elderly, the professional associated with the individual can call The Arc of Northern Virginia directly at 703-208-1119 and speak to one of the Services team members to receive a referral packet. Depending on our current capacity, the person could be placed on The Arc of Northern Virginia’s waiting list.
- The Arc of Northern Virginia cannot be named as a stand-by guardian in a will or other life planning document.
- The Arc of Northern Virginia is not equipped with attorneys who have the legal authority to assist in obtaining guardianship/conservatorship. Instead, The Arc of Northern Virginia can provide a list of attorneys who are able to facilitate this process and who have the expertise, knowledge, and understanding of disability law. It is advisable that you consult with an attorney to explore alternatives to guardianship/conservatorship, types of guardianship/conservatorship, and less restrictive options. An attorney can also help you navigate a complex court legal procedure and help protect the best interests of your loved one.
