Estate Planning, Guardianships and Conservatorships


Estate Planning, Guardianships and Conservatorships

A guardian is a person who is legally responsible for managing the affairs of an incapacitated person. A person formally can become a guardian only if appointed by a court. If your veteran has a physical or mental condition giving rise to an inability to make decisions regarding financial matters and/or his or her daily needs, you may consider having a guardian appointed to make these decisions on behalf of your veteran. If you are appointed as a guardian, the court’s order will describe the types of decisions you now legally are allowed to make for your veteran, and your veteran will no longer have the legal ability to make these decisions.

The process for becoming a guardian is controlled by state law and likely will vary somewhat from state to state, but the typical process involves a court taking two steps:

  • First, the court formally will determine your veteran is incapacitated in some fashion. Perhaps the court will find he or she has demonstrated an inability to make financial decisions or is not able to make decisions about health care needs.
  • If the court finds any existing conditions demonstrating diminished capacity and possible harm, it then will take the next step of formally appointing a guardian. You may ask the court to appoint you, or you may ask to have someone else appointed.

Your veteran will receive notice of a hearing on the guardianship petition. Your veteran is allowed to object to the appointment of a guardian. Your veteran has the right to be represented by an attorney in the process; in some states, the court may appoint an attorney if requested. There is also a right to be present at the hearing; and under the Americans with Disabilities Act, your veteran has the right to court accommodations if he or she has limitations that make participation in the court proceeding difficult. You also should be aware that even though you may ask the court to appoint a guardian out of a concern for your veteran’s well-being, a guardianship will terminate your veteran’s legal ability to make decisions for himself or herself, which is a very serious matter. As a result, the court will be concerned about protecting your veteran during the guardianship process. The court may appoint an objective third party, often called a guardian ad-litem or court visitor, to review your veteran’s case, examine medical records and talk to witnesses, and to then issue a formal report to the court giving an opinion, based on all of the evidence, whether a guardianship is appropriate. The court will weigh this opinion very heavily.

Having a guardian appointed requires the filing of a complex legal action that is likely beyond the ability of a layperson. If you wish to seek a guardianship for your veteran, you probably will need a lawyer.

Determining capacity is a complex process that depends on the evidence provided to the court, which can include testimony of friends, family, and caregivers; medical evidence; possible criminal activity or activity that would hold the veteran civilly liable (like not paying bills); and other evidence. A court will want to ensure the person’s condition is quite serious and not just because of, for example, a lack of attentiveness to the activities of daily living — a court will be looking to see whether the person is gravely disabled. The court will require at least a statement from a physician or another clinician and may order evaluations by additional experts, such as neurologists, social workers, and psychologists, to determine the capacity of your veteran. If your veteran has received a disability rating from the VA, this might be one of the strongest pieces of evidence of incapacity, but it does not automatically lead to a guardianship. Many other factors might come into play. See the information on this site about How the VA Establishes Incapacity and also documents at the following places: determinations of incompetency and competency and conditions that determine permanent incapacity for self-support.

The American Bar Association and American Psychological Association have published a handbook that describes, in detail, how to make assessments of diminished capacity. Though the handbook is targeted at determining incapacity in older adults, the same principles apply to wounded veterans.

Ultimately, however, if you believe your veteran to be incapacitated and in need of a guardianship, you first should talk with a lawyer who can best evaluate how to build such a case.

However, before you file for guardianship, be sure you have explored other less restrictive options for decision making that don’t result in court removal of rights. Perhaps your veteran is able to execute a financial power of attorney and a health care advance directive.

The guardian’s legal responsibilities will be spelled out in the court order appointing the guardian. As a general rule, however, there are two broad categories over which a person may be appointed guardian.

The first is guardian of the estate, or guardian of property. This type of guardian manages some or all of your veteran’s property and finances. Depending upon what state law and the court’s order requires, this type of guardian must provide a regular accounting to the court about how the veteran’s finances and property are being managed and how money, benefit income, and assets are utilized; there might be certain decisions that first will require court approval before the guardian can make them.

The second type is guardian of the person. This guardian is responsible for assessing and meeting some or all of your veteran’s physical, mental, and emotional needs and providing whatever assistance is necessary for daily living activities. When serving as guardian of the person, the guardian might be required to provide the court with a care plan that describes how the veteran’s personal needs will be met and then might be required to give periodic reports to the court on how the plan is being implemented. All states require at least a status report describing the current health status, living arrangements, and services provided to the person. State law might impose certain limitations on what kinds of decisions a guardian of the person may make without prior court approval, such as prohibiting the veteran from being involuntarily committed to mental institution or being admitted to a nursing home.

If your veteran’s incapacity is not severe, the court may characterize the guardianship as a limited guardianship, which would authorize the guardian to make only certain kinds of decisions for the veteran. Regardless of what the guardianship is called, the court’s order very clearly will spell out what the guardian is legally entitled to do for any given veteran.

Court-appointed guardians for veterans in particular will have a range of responsibilities, and these extend not just to the personal care of their veterans but also to other tasks that might be more relatively mundane, such as filing and submitting paperwork related to VA benefits. Though these kinds of activities might seem not as important as other things, such as providing medical care, under the legal obligations imposed by the guardianship, they are just as important and should not be overlooked. 

Guardianships are defined by state law and may vary from state to state. Different states use different terms, and all of these may or may not mean the same thing as guardian. In a growing number of states, a guardian makes personal decisions, whereas a conservator makes financial decisions and is generally, but not always, another name for guardian of property.  

If the VA determines your veteran lacks capacity in a way that interferes with his or her ability to manage financial affairs, the VA will appoint someone to serve as a VA fiduciary. The VA fiduciary is somewhat similar to a guardian of the estate, with three important limitations: First, the fiduciary is not appointed by a court. Second, the fiduciary is in charge of administering only those benefits the veteran receives from the VA. In some cases, this responsibility may extend to administration of all of the veteran’s financial matters if his or her VA benefits income is combined, as in a checking account, with the veteran’s other funds. Third, the VA, and not the court, will have oversight.

Generally, the VA will find a veteran requires a fiduciary based on the medical condition giving rise to the claim to VA benefits in the first place. But if a veteran has been determined to be lacking capacity as a part of a guardianship proceeding, that also might be an instance where the VA will select a fiduciary, which might or might not be the court-appointed guardian.

One other point regarding the VA Fiduciary Program: In addition to wounded veterans, a VA fiduciary also might be required to be appointed for a veteran’s beneficiary if that beneficiary receives VA benefits. For example, if a deceased veteran has a spouse who is eligible for the veteran’s VA benefits, but the spouse is incapacitated due to mental illness, the VA may require a fiduciary for the spouse. Similarly, a minor child of a deceased veteran may have a fiduciary (which may be the child’s surviving parent) required to receive the veteran’s benefits.

Click here to request legal counsel.