Guardianship & Estate Planning

What is a fiduciary?

A fiduciary is responsible for financial or personal decisions for an individual.  The fiduciary is held to a strict standard of performance, obligated to make decisions about money, property, or health care that are in the best interests of the individual without regard to the benefit or advantage of the fiduciary.

Who can be a fiduciary?

In the past, fiduciaries were likely to be banks or trust companies or attorneys.  That remains true today, but the modern view is that anyone may serve as a fiduciary.  For people unable to handle their own decision making, courts appoint guardians to make medical decisions and conservators to manage finances. For probate estates, courts recognize executors appointed in wills as fiduciaries, and appoint administrators for estates where no will is available.  An individual can also use a power of attorney to designate an agent who serves as a fiduciary.

What is a Guardian?

An individual who is unable to make decisions for his or her care needs and make housing choices may require a court appointment of an individual, referred to as a guardian, to make such decisions acting with or in place of the ward.  In Virginia, the guardian is limited to non-financial decisions, and need not be a relative of the ward or a Virginia resident.

What is a Conservator?

In many states, the term “guardian” means both the person who makes health care decisions and manages finances for an incapacitated person.  Virginia makes the distinction between a Guardian with health care and responsibility for personal decisions and a Conservator, who is appointed to take control of the ward’s income and assets.  The same person can be appointed to both offices, different people can serve, and more than one person can share each office.  Not every ward requires the appointment of both a financial decision maker and a heath care advocate.  Every Conservator must be able to qualify for a bond, a form of insurance that provides security for the correct accounting for the ward’s assets by the Conservator.

How are Guardians and/or Conservators appointed?

Every petition for the appointment of either a Guardian or a Conservator requires a written statement from a physician, psychologist or other medical professional attesting to a specific diagnosis for the proposed ward with the conclusion that the condition deprives the ward of the ability to make decisions for himself.  The proposed Guardian and/or Conservator must appear in the Virginia court to be appointed, after notice of the petition to the ward and others who are interested in his welfare.  The process may take as little as seven days from the filing of the petition to a hearing and possible entry of the order of appointment.

How extensive is the firm’s fiduciary practice?

Dingman Labowitz serves those unable to act for themselves in critical decision making for health, housing, and finances.  For some, age or accident has taken the ability to make decisions as to what medical care is needed or appropriate, whether independent living or a care facility is best, and how assets and income should be managed and accounted for.

As Guardian and/or Conservator appointed by courts in Northern Virginia, Ken and Anne are the decision makers and financial managers for hundreds of individuals, with more than $25 million in assets presently under control for incapacitated individuals.  We also assist families in the appointment of a Guardian and Conservator for parents as they age, or for a child whose needs transcend the fact that he or she is now legally an adult at age 18.

We are experienced across a broad range of family experiences:

  • Selection of care managers to assist in home care
  • Choice of care facilities
  • Identification of assets, including bank and brokerage accounts, safety deposit boxes, and sources of income
  • Gaining functional control of accounts and assets so that the funds can be used for the care and benefit of the ward
  • Techniques for meeting the court-imposed accounting and reporting requirements
  • The complex issues surrounding the ward’s residence and its contents
  • The stresses on the family from the incapacity of one of its members
  • End of life decisions

We serve as the decision maker for many wards, and we advise others who wish to serve in the capacity of guardian and conservator for a family member or a friend.  We speak from the experience of facing complex issues and choices.

Dingman Labowitz also acts as the administrator of estates.  Many of the same financial and emotional issues are involved in the decisions that must be made following the death of a family member, from choices of funeral arrangements to the disposition of personal belongings and homes.   Frequently records are in disarray, and the same techniques used as conservators must be employed to identify and track down assets and accounts to be included in the estate.