The Blind Side is an Oscar award-winning movie based on the life of a young man in Tennessee, Michael Oher, and the unrelated Touhy family he lived with while in high school. A new lawsuit raises several interesting issues. There are allegations that this is not the feel-good story portrayed in the movie. Instead, this may be a situation where a couple took advantage of a vulnerable young adult to enrich themselves.
Can a person who is 18 be adopted by a non-relative? What is a conservatory? Can a person still sign contracts even if they have a conservator? When does a conservatorship end? Every jurisdiction is a little different but let’s discuss adoption, guardianship, and conservatorship in Virginia.
Virginia allows strangers and non-relatives to adopt a person who is over the age of 18. The adopted person must be 15 years younger than the person adopting them. They must also have known each other for at least a year.
Adoption generally terminates the familial relationship with a person’s birth family. Upon adoption, the adoptee does not inherit assets from their birth family. They are now members of their adoptive family. A well-rounded estate plan will typically treat birth and adoptive children the same whereas stepchildren generally do not inherit from their stepparents unless they are named in specific provisions.
The process for adopting an adult in Virginia begins with a petition for adoption signed by the person who wants to adopt the adult. If the adoptee’s parents are still living, then they may file a natural parent affidavit in support of the adoption. The adult adoptee must then consent to the adoption under oath. Finally, the judge will sign the proposed order that establishes this new family unit.
Not all bonds are familial bonds. Virginia enacted a guardian and conservator statute in 1997. Under the statute, the primary parties are the incapacitated person, the guardian, and the conservator. A guardian or conservator has a fiduciary duty to the incapacitated adult.
An incapacitated adult has been deemed by the Court to be a person who is incapable of receiving and evaluating information. An incapacity is such that the adult cannot provide for their own care, health, and safety without the assistance of a guardian or cannot manage their own property or affairs without the assistance of a conservator. Virginia attempts to find the least restrictive manner of assisting the incapacitated adult.
A guardian is a court-appointed person who is responsible for making decisions for the incapacitated adult regarding their residence, health, safety, education, and treatment.
The guardian is required to file annual reports with the court. The guardian may also handle small amounts of assets for the incapacitated adult.
A conservator is a court-appointed person who is responsible for managing the estate and financial affairs of an incapacitated adult. A conservator is not appointed unless the adult has significant assets.
Poor decision-making is not a sufficient reason to appoint a guardian or conservator. The key is that the adult cannot receive and process information in such a way that they can understand and appreciate the decisions they are making.
Several cognitive disorders are associated with a finding of incapacity. They include dementia, intellectual disability, autism, mental illness, post-traumatic stress disorder, mood disorders, substance abuse, schizophrenia, or affective disorders.
The process for appointing a guardian or conservator for an adult in Virginia begins with a petition for intervention and appointment of a guardian or conservator. There are specific statutory requirements for the language that must be included in the petition. It must identify the petitioner and the adult that may have an incapacity. In fact, that incapacity must be described in detail as well as providing information about what services for care, health, safety, treatment, and living arrangements the adult is currently receiving as well as what services or treatments are required.
The Court will appoint a Guardian ad Litem (GAL) to represent the interests of the possibly incapacitated adult. The GAL will attend all court proceedings and speak for the adult if they are unable to speak for themselves. The GAL must file a report with the Court providing details of their investigation and recommendations about the need for a guardian or conservator.
The Court will not appoint a guardian or conservator without a medical evaluation. This evaluation is normally filed under seal at the same time the petition is filed with the court. A licensed physician, psychologist, or other professional assesses the adult’s specific physical or mental conditions and prepares the evaluation.
The potentially incapacitated adult must receive notice of the hearing. The petition must include a warning in a larger font that the adult may lose their rights, that a guardian may be appointed to make personal decisions for them, and that a conservator may be appointed to manage their finances. These appointments may affect how you spend your money, make your medical decisions, decide where you live, and other important rights.
The Court will not appoint a guardian or conservator unless there is a finding of clear and convincing evidence that the adult is incapacitated and cannot make decisions for themselves. The order will also include information about the incapacity and the long-term prognosis.
The incapacitated adult may still be able to sign contracts if the contracts are approved and ratified by the conservator.
A guardianship or conservatorship can be permanent or for a limited duration. It is in place as long as that adult is incapacitated.
Adoption, guardianship, and conservatorship are all bonds. The question is which bond is best in the situation.
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