Category Archives: Guardianship/Conservatorship Proceedings

Raise It or Waive It?: The Virginia Supreme Court Weighs in on When Parties in Estate Litigation Must Raise (or Waive) Testamentary Capacity/Undue Influence Claims

Imagine your aging, widowed mother (“Mother”) has dementia and moves into assisted living.  You live about four hours away from Mother.  Your sibling (“Sibling”) lives about five (5) minutes away from Mother.  Sibling becomes increasingly involved in Mother’s affairs.  One day Sibling provides you with a copy of Mother’s recently changed will.  The new will leaves everything to Sibling.  Given Mother’s dementia, you are highly concerned because you don’t think Mother had the capacity to make the new will.  You ask Sibling about the new will.  Sibling says “It’s what Mother wants.” Later, Sibling files a lawsuit seeking to be …

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Posted in Court Opinions, Disinheriting Family Members, Elder Law Disputes, General, Guardianship/Conservatorship Proceedings, Legal Terminology, New Laws, Power of Attorney Disputes, Undue Influence, Will Disputes \ Comments Off on Raise It or Waive It?: The Virginia Supreme Court Weighs in on When Parties in Estate Litigation Must Raise (or Waive) Testamentary Capacity/Undue Influence Claims

The Role of the Commissioner of Accounts in Virginia Estate and Trust Administration

People typically picture the probate process going something like this: a person dies, you find their will, you take the will to the courthouse, the executor pays the debts, and then the executor distributes the assets.   Of course, the process is much more complicated and time-consuming than that.  Moreover, there are also multiple people involved in the process of administering an estate or testamentary trust.  One of these critical people is the Commissioner of Accounts. If you are serving, or have served, as the executor or administrator of an estate in Virginia, you will no doubt have been in contact …

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Posted in Court Opinions, Elder Law Disputes, Fiduciary Accounting Requirements, Fiduciary Duties, General, Guardianship/Conservatorship Proceedings, Legal Terminology, Trust Disputes, Will Disputes \ Comments Off on The Role of the Commissioner of Accounts in Virginia Estate and Trust Administration

Guardianship Petitions by Long Term Care Facilities

This blog post explains how long term care facilities (LTCFs) can consider utilizing guardianship and conservatorship petitions for problematic situations where a resident has named an agent under a power of attorney (POA), and the agent fails to pay the resident’s bills, thus jeopardizing the resident’s wellbeing. Independent living facilities, assisted living facilities, and nursing homes traditionally take steps to ensure that residents have enacted financial POAs, as well as healthcare POAs, upon admittance. What happens when an agent named under a POA fails to make payments for the resident’s stay at the LTCF? The LTCF can sue the resident, …

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Virginia Supreme Court Issues New Ruling Regarding Guardianship Orders

A recent Virginia Supreme Court case highlights the importance of using precise language in an order appointing a guardian, as well as ensuring that when a guardian files suit on behalf of a ward, the guardian sues in the correct capacity. The Virginia Supreme Court recently handed down its ruling in Lopez-Rosario v. Habib, 785 S.E.2d 214 (2016), which dealt with an appeal from the Fairfax County Circuit Court. The Court confronted the issue of whether the trial court properly dismissed a medical malpractice claim on the ground that the plaintiff filed suit in her own name, despite the fact that …

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Guardianships for Disabled Young Adults

Consider a common situation: Mom and Dad care for their severely disabled child, who is quickly approaching 18 years of age. Let’s call this hypothetical soon-to-be adult Jane. Jane has suffered from severe autism her whole life. She has been in special education throughout her entire school career and requires specialized and frequent medical care.  Jane will never be able to live on her own or manage her finances. Jane’s parents will care for her indefinitely. Jane’s parents wonder if they need legal assistance to plan for Jane’s transition to adulthood. Without proper planning, Jane’s parents will face great difficulty once …

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Why a Guardianship Proceeding Could be a Precursor to a Will Change

Did you know that in Virginia, a person who is the subject of a guardianship and/or conservatorship can still have the requisite testamentary capacity to enact or amend his will? As a result, there’s a huge potential for mischief by those seeking to be appointed a guardian and/or conservator. First, some background: several years ago, the Virginia Supreme Court reiterated – in the case Parish v. Parish, 281 Va. 191 (2011) – that a person can still have testamentary capacity to make a will (that is, the required mental ability), even if a court has appointed a guardian and/or a …

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Posted in Disinheriting Family Members, Guardianship/Conservatorship Proceedings, Undue Influence \ Comments Off on Why a Guardianship Proceeding Could be a Precursor to a Will Change