The reality is that many people will become disabled one or more times during their lifetime. Should that occur, who will have the necessary legal authority to make medical decisions for you, or to access and manage your financial assets? Absent key legal documents, very likely no one. Should that occur, the only recourse available is to petition the court for the authority needed.
There are two types of authority the court is typically asked to grant when someone becomes disabled. One is a petition to have someone appointed Guardian of the Person; the other is a petition to become Conservator (essentially a trustee) of the Assets. Each are discussed below.
Petition to be Guardian of the Person
A petition to be appointed guardian of an adult person generally takes about three to four weeks to accomplish. A written petition must be filed with the court. The minimal contents of the petition are prescribed by statute. Typically the petition is not something a lay person should undertake without the assistance of legal counsel, and certainly if the request is time sensitive.
Petition to be Appointed Conservator of the Assets
If there are assets that need to be managed, a petition to be appointed Conservator of the Assets is filed with the court. Again, the minimal contents of the petition for conservator are prescribed by statute, must be in writing, and this is best pursued with the assistance of legal counsel. Most times the petitions for Guardianship and Conservator are incorporated into a single petition. Be advised that Conservators must be bonded with surety, so if there is any concern about whether an insurance company will bond a proposed Conservator, that should investigated before undertaking to petition the court.
Guardian ad Litem
A petition for Guardianship and Conservatorship will trigger the appointment by the court of a duly qualified attorney to serve as Guardian ad litem or GAL.The role of the GAL is to investigate the facts of the petition, the people seeking to be appointed as Guardian and Conservator, the claim of disability, meet with the person over whom the Guardianship and Conservatorship is being sought to advise them of their rights, and much more, and then submit a written report with recommendations to the Court. The GAL is paid a fee, approved by the court, and that fee is either charged against the assets of the person over whom the guardianship or conservatorship is sought, or if that person is found to be indigent, then it is paid by the Commonwealth of Virginia.