Understanding Guardianship and Conservatorship

And How to Avoid Them!

By Brenda Waugh

When a friend or family member is unable to make decisions for themselves, loved ones often want to find a way to help out — to be legally able to make decisions for them. The disability can be caused by an accident or a debilitating disease acquired during adulthood. The disability may also be a condition a child is born with or acquires during childhood. There are several options on how an adult may gain the authority to make medical or legal decisions for another adult.

Court Involvement: Appointment by the Court as Guardian or Conservator

When a person has not executed any documents to give another power to make legal and medical decisions to another, the only way to gain control over these decisions is to petition the court to be appointed as the guardian or conservator. A guardian is a person who is charged with managing the personal and medical needs of another. A conservator is a person charged with managing financial needs.

To become appointed, a person must petition the court, which will assign an attorney to serve as the Guardian Ad Litem for the person with the disability to assist in the legal proceeding. Next, a hearing will be held where the judge will decide whether or not the person is incapacitated and, if so, will execute an order appointing the petitioner as the guardian or conservator. At that point, the guardian or conservator must formally qualify by taking an oath at the office of the clerk of the court. In addition, they may need to post a surety bond. After the appointment, the appointee will have limited authority to take action on the other person’s behalf. They may need to get specific authority to act, such as changing the incapacitated person’s residence. The appointee will be required to file periodic reports. The court may revoke guardianship and conservatorship at any time if the person being protected or another person challenges it. Involving all stakeholders and family members before taking matters to court is best. The family should work with a mediator if they cannot agree on whether or not guardianship should be pursued and who should be selected as the guardian/conservator to avoid protracted legal proceedings and court involvement.

Document Preparation: Durable and Medical Power of Attorney

Court involvement in guardianship and conservatorship can be avoided entirely when the issue involves an incapacitated adult by proper preparation. Any adult may appoint any other adult to be their durable medical and legal power of attorney.

The durable legal power of attorney performs a function similar to the conservatorship — it allows a person to make legal decisions for another. However, unlike conservatorship, a power of attorney allows the person executing the document to decide how broad or narrow those responsibilities will be. It also can be revoked at any time and can name alternative persons to perform the duties. The medical power of attorney, living will, and advanced medical directive can appoint another person to make medical decisions. It also can guide what preferences an adult has regarding certain medical decisions. This document operates similarly to guardianship, but only as to medical issues. The power may be withdrawn at any time.

A key factor to consider with the medical and legal power of attorney is carefully selecting the person to whom these duties are assigned. It is equally important for the decision to be discussed with the appointee, friends, and family members to increase the potential for everyone to accept a decision. With that cooperation, those who are satisfied would be less likely to seek court involvement.

When families or friends have difficulty discussing these issues, it is often advisable to work with a mediator to help make and communicate the decisions and avoid involving courts in these private matters. these private matters.

Brenda Waugh is a lawyer/mediator with Waugh Law & Mediation, serving clients in the Blue Ridge region of Virginia and Eastern Panhandle of West Virginia

Clarke County Memorial Day Service

Lieutenant Colonel Jonathan Westbrook To Deliver Message

Clarke County’s community Memorial Day Service will be held on Sunday, May 28, at 2pm in Rose Hill Park in Berryville. The theme of the program will be “Fallen But Not Forgotten: A Tribute in Our Anniversary Year”.

In addition to the Town of Berryville observing its 225th anniversary, VFW Post 9760 is celebrating its 75th anniversary in 2023. Lieutenant Colonel Jonathan Westbrook, U.S. Army, will deliver the Memorial Day message. Commissioned as an infantry officer in 2003, Jonathan deployed to Iraq between 2004 and 2007 with the 82nd Airborne Division three times and with the 25th Infantry Division (Light) in 2008. He served in strategic positions from 2012 to 2023, including a fifth deployment to Iraq in 2019 to 2020. Jonathan is a recipient of the Airborne Badge, the Expert Infantryman Badge, the Combat Infantryman Badge, the Combat Action Badge, and the Ranger Tab. A member of VFW Post 9760, Lieutenant Colonel Westbrook and his family reside in Clarke County.

American Legion Post 41 Commander Tom Vorisek and VFW Post 9760 Commander Mike Blumenthal will lead the service. The Clarke County High School Band, led by Mark Curry, will provide prelude and postlude selections and the National Anthem. The Clarke County High School Chamber Choir, led by Kristi Snarsky, will perform two songs at the service. Colors will be posted and retired by The James Wood Chapter of the Sons of the American Revolution. The Clarke County Honor Guard, led by Chris Birch, will provide a military salute.

In addition to the Memorial Day Service, members of VFW Post 9760 and American Legion Post 41, and members of Boy Scout Troop 34 will place American flags at veterans’ gravesites at Green Hill Cemetery in Berryville on Saturday, May 27th at 9am. Volunteers will also place flags at Milton Valley Cemetery in Berryville during the Memorial Day weekend.

In case of inclement weather, the Memorial Day Service will be held in Berryville’s

Barns of Rose Hill, a cultural and civic center adjacent to Rose Hill Park. The sponsoring organizations, Clarke County Memorial VFW Post 9760 and American Legion Post 41, invite all attendees to join them at the VFW Post at 425 South

Buckmarsh Street in Berryville for free refreshments and fellowship following the ceremony.

For additional information, contact Tom Vorisek, Memorial Day Committee member, at (540)303-0774