The Code of Virginia provides a well-established judicial process to ensure due process to an individual that must respond to a protective proceeding. This process is commonly referred to as a Guardianship and/or Conservatorship.
When an individual is at great risk for exploitation by others (financial or physical) or is a risk to themselves, a guardianship or conservatorship may be the best method to ensure the individual is protected. In most situations, a well drafted durable general power of attorney and advance medical directive are sufficient to allow an agent to act on behalf of the vulnerable individual. However, when an individual cannot meet the essential requirements for their health, care, safety, or therapeutic needs without assistance or manage their property or financial affairs or provide for their support or for the support of their legal dependents without assistance, then the appointment of a guardian or conservator may be the best solution.
There are numerous alternatives to the appointment of a guardian or conservator for an individual, and every situation is different. A thorough review of these alternatives will ensure the least restrictive means are utilized to provide for the safety and protection of the individual, their means of support and assets. Having a consultation with an elder law attorney can provide a review of the factual basis to make an informed decision in these serious and sometimes emotional matters.
Our firm represents the petitioner or respondent in protective proceedings. Additionally, we serve as Guardian ad Litem for incapacitated adults in these matters.
Guardians Ad Litem are appointed by the court to represent the interests of the alleged incapacitated adult. As the eyes and ears of the Court, a Guardian Ad Litem is responsible to protect “the best interest” of the individual during the protective proceeding.
Assistance in obtaining public benefits such as Medicaid, Medicare, Social Security and Supplemental Security Income (SSI).
Disability planning includes development Special Needs Trust or provisions in other testamentary documents so special needs protections are available in the future.
Our Elder Care management services include bill paying and account management and reporting, care management, and other fiduciary services that support our clients remaining in a safe, home environment.
Special needs planning is an aspect of elder law that provides families and caregivers the tools to ensure future long-term support to individuals who are disabled or incapacitated and receiving (or may receive) government benefits. These benefits are usually needs based, such as Supplemental Security Income (SSI) or Medicaid.
When an individual is receiving or has the potential to receive certain benefits, their income and assets may be limited by law. This means that, if the individual were to receive income or assets from a parent, other family member, or friend, they may lose their right to those benefits. Federal law provides several safe harbors that allow the use of specific planning tools that will allow assets to be designated for the support of the incapacitated individual which will not impact the receipt of those benefits.
The use of a Special Needs Trust is a well-recognized tool to allow asset transfers to an individual on needs-based benefits without impact. Compliance in this area of Elder Law can be somewhat complicated, and the assistance of an Elder Law attorney can help ensure that critical benefits are maintained for the lifetime of the individual.