Sometimes in the course of handling a personal injury case there may be a need to appoint a guardian for the plaintiff. In particular if the plaintiff becomes incompetent. That is a tough call since it puts the lawyer potentially at odds with the client.
Traditionally a guardian has been thought of as being the person who controls not only the assets of the disabled person but also physically controls the body of the disabled person. However now that broad classification is broken into two categories: guardianships and conservatorships. The guardian is the one who controls the physical person. The conservator is the one who controls the assets.
Legal Standards for Guardianships in Personal Injury
The standards for either a guardian or a conservator are the same. There must be a determination made that the proposed ward is incapacitated. Incapacitated means that they are not capable of receiving and evaluating information effectively or responding to people, events or environments to such an extent that the ward lacks the capacity to meet the essential requirements of daily living or to manage his property or financial affairs. In general it means the person is mentally incompetent.
Appointment of a Guardian in Personal Injury Cases
Technically either the court or a circuit court clerk can appoint a guardian. Hereafter the term “guardian” will include conservator. Ideally the guardian should be related to the ward. That is not required in all circumstances.
A petition for appointment must be filed with the court. That petition must be filed in the county or city where the ward is a resident or is located or in which the ward resided immediately prior to becoming a patient in a hospital, etc.
The petition may be filed by anyone. It must contain all the information set forth in Va. Code § 64.2-2002. It must also call for the appointment of a guardian ad litem. A guardian ad litem is different from a guardian. A guardian ad litem is appointed by the court. The guardian ad litem typically is a local attorney. The limited role of the guardian ad litem is to protect the interest of the ward during the pendency of the petition.
Guardianship Hearing Requirements
There are very specific requirements as to the notice of the hearing in the petition. That notice must be served on the ward. Prior to the hearing, a separate confidential report needs to be filed. Typically that report is going to be authored by a medical doctor, a licensed clinical social worker, a licensed clinical psychologist, a nurse practitioner or a physician’s assistant. The better course of action is to have the document signed by a medical doctor who has treated the ward over some period of time.
The ward is entitled to a jury trial. In evaluating the overall merits of the petition, what the court or jury will look at are the actual condition of the ward, the availability of other alternatives, the extent to which the ward needs to be protected, the actions of the proposed guardian and overall what is in the best interest of the ward. Any determination must be made based upon clear and convincing evidence.
Based on the conclusions of the court, it is possible that the petitioner could be made to pay all of the attorney’s fees for all of the parties involved in the proceeding.
Once the appointment is made, then there is a schedule for periodic review hearings to determine the need for continuing the guardianship.
Limited Guardianships in Personal Injury Cases
There is the potential for a person to be appointed as a limited guardian. This is appropriate where the ward does have the ability to take care of some of their needs but perhaps not all of them.
Powers and Responsibilities of the Guardian
The powers of the guardian may be very broad. Specifically they will be defined by the Court Order appointing the guardian. That Court Order may make reference to certain Code sections that define what the powers are of a guardian. One of the powers that a guardian may have is to restrict communication by third parties with the ward. The guardian must file an annual report advising the court as to what the guardian has done for the ward, the condition of the ward and the need for the ongoing maintenance of the guardianship.
Guardianships are not a panacea. In reality the guardian (not the conservator) has no more ability to make the ward do something than does a natural parent. As such the guardian should not be thought of as some all-powerful person. They are not. In the personal injury context what you will probably have to seek is both a guardianship and conservatorship. That is the person appointed will have to control both the person and the assets.
Practical Guidance for Injured Clients
Call, or contact us for a free consult. Also for more info on personal injury see the Wikipedia pages. Also see the post on this site dealing with personal injury issues issues.
