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 conservator to care for his person and/or finances.
Here’s where the potential for trouble comes in: say that your mom’s mental abilities are failing and that she can’t manage her day to day affairs anymore. Your mom never got around to executing a power of attorney, and therefore your brother decides to petition the court to be appointed her guardian and conservator (such that he can make decisions relating to her personal care and finances). At first you may think, “Great, I’m glad he’s taking care of her”. But consider this: if your brother is appointed guardian and conservator over your mom, he’ll have the authority to decide where she lives, what medical providers she sees, etc.
Say he decides to have her move in with him. Say that about a month down the line, he decides to take her to his long-time estate planning attorney where mom “decides” to change her will to disinherit you, and leave all of her assets to your brother. Under Virginia law, despite the fact that your mom has a guardian and conservator, she could still legally have the required capacity to execute a will (under Virginia law, if a person executing a will understands, at the time he signs the will, his family, his property, that he’s making a will, and how the will disposes of his property, then he has adequate testamentary capacity).
Under this scenario, you would be left to try to file a lawsuit seeking to invalidate the will on the grounds that your brother unduly influenced your mom to change her will, or that she lacked adequate testamentary capacity at the time of the will’s execution.
What could you do to try to prevent this scenario? Several things. First, if your brother is not the honest type, you could oppose his petition for guardianship and conservatorship of mom. Second, you could seek to cooperate with your brother to have both of you appointed as co-guardians and co-conservators. Third, you could attempt to agree that the court order appointing a guardian and conservator for your mom also contains a finding of fact that she lacks the requisite testamentary capacity to execute any new wills. The important point in all of this is to be proactive to try to prevent estate disputes before they occur. In sum, you must take seriously the potential for mischief when someone seeks to be appointed as guardian and/or conservator for a loved one. A lot more than the care of that person may be on the line (that person’s assets could be on the line too).