Understanding Guardianship and Conservatorship And How to Avoid Them!

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By Brenda Waugh

When a friend or family member is unable to make decisions for themselves, loved ones often want to find a way to help out — to be legally able to make decisions for them. The disability can be caused by an accident or a debilitating disease acquired during adulthood. The disability may also be a condition a child is born with or acquires during childhood. There are several options on how an adult may gain the authority to make medical or legal decisions for another adult.

Court Involvement: Appointment by the Court as Guardian or Conservator

When a person has not executed any documents to give another power to make legal and medical decisions to another, the only way to gain control over these decisions is to petition the court to be appointed as the guardian or conservator. A guardian is a person who is charged with managing the personal and medical needs of another. A conservator is a person charged with managing financial needs. 

To become appointed, a person must petition the court, which will assign an attorney to serve as the Guardian Ad Litem for the person with the disability to assist in the legal proceeding. Next, a hearing will be held where the judge will decide whether or not the person is incapacitated and, if so, will execute an order appointing the petitioner as the guardian or conservator. At that point, the guardian or conservator must formally qualify by taking an oath at the office of the clerk of the court. In addition, they may need to post a surety bond.

After the appointment, the appointee will have limited authority to take action on the other person’s behalf. They may need to get specific authority to act, such as changing the incapacitated person’s residence. The appointee will be required to file periodic reports. The court may revoke guardianship and conservatorship at any time if the person being protected or another person challenges it.

Involving all stakeholders and family members before taking matters to court is best. The family should work with a mediator if they cannot agree on whether or not guardianship should be pursued and who should be selected as the guardian/conservator to avoid protracted legal proceedings and court involvement.

Document Preparation: Durable and Medical Power of Attorney

Court involvement in guardianship and conservatorship can be avoided entirely when the issue involves an incapacitated adult by proper preparation. Any adult may appoint any other adult to be their durable medical and legal power of attorney. 

The durable legal power of attorney performs a function similar to the conservatorship — it allows a person to make legal decisions for another. However, unlike conservatorship, a power of attorney allows the person executing the document to decide how broad or narrow those responsibilities will be. It also can be revoked at any time and can name alternative persons to perform the duties. 

The medical power of attorney, living will, and advanced medical directive can appoint another person to make medical decisions. It also can guide what preferences an adult has regarding certain medical decisions. This document operates similarly to guardianship, but only as to medical issues. The power may be withdrawn at any time. 

A key factor to consider with the medical and legal power of attorney is carefully selecting the person to whom these duties are assigned. It is equally important for the decision to be discussed with the appointee, friends, and family members to increase the potential for everyone to accept a decision. With that cooperation, those who are satisfied would be less likely to seek court involvement.

When families or friends have difficulty discussing these issues, it is often advisable to work with a mediator to help make and communicate the decisions and avoid involving courts in these private matters. these private matters. 

Brenda Waugh is a lawyer/mediator with Waugh Law & Mediation, serving clients in the Blue Ridge region of Virginia and Eastern Panhandle of West Virginia.

Saluting A Habitat Tree

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By Doug Pifer

It’s good for a tree’s overall health to remove dead branches. And falling limbs can be a true hazard. But there is great value in keeping a dead tree standing in a safe spot in your yard 

or property.

My wife and I were thrilled to discover a big Kentucky Coffee tree growing next to our driveway when we moved here. As it began to leaf out, we sadly learned it was near the end of its life. Several large limbs had already fallen, and one of them had damaged the roof of the garden shed. We were concerned that, during a storm, more falling limbs would damage our newly built fence or our car. 

We wanted our tree to remain standing as wildlife habitat so we had arborists from Viking Tree Service carefully sculpt it so the limbs couldn’t fall and cause damage. Now the old Kentucky coffee tree stands majestically like a dead tree in the woods.

This old tree was a wildlife habitat long before we moved here. For trees, death can be very gradual. A dying tree, which foresters call a hard snag, attracts wood-boring insects, lichens, moss, and fungi. Weather and wind work to soften the outer bark and it starts to slough away, leaving open spaces where bats roost during the day. Woodpeckers chisel into the tree to get the ants, beetles, and other insects hidden in chambers and networks of tunnels in the dead wood.

After several years, fibers in the dead wood gradually soften and continue to break down, and the dead tree becomes a “soft snag” in forestry-speak. Woodpeckers that used to hunt the hard snag for insects now chop away deep cavities for nesting. After the woodpeckers raise a brood, they abandon the nest hole, preferring to dig out a new one next season. The empty woodpecker cavities shelter rodents, snakes and lizards. 

These ”secondary” tree cavities are prime real estate for nesting birds in the spring. Chickadees, titmice, flycatchers, barred and screech owls, bluebirds and wood ducks all nest in abandoned woodpecker holes. Certain cavity nesters, like owls, add no further nest material. Others, like wrens and chickadees, fill the chamber with sticks, grass, or moss. Some cavity nesters add plastic or paper wrappers, shed snake skins, or feathers.

Bluebirds and purple martins are native birds that once nested in old woodpecker holes. But since the 19th century European starlings aggressively took over nesting sites to the extent that the native birds’ populations began to suffer. Nowadays bluebirds and purple martins are on the rebound, largely because they have come to prefer nesting in man-made bird boxes instead of using “traditional” sites. 

Dead trees also make wonderful loafing sites. Birds like to hang out where they can see approaching enemies. They rest, preen, and socialize without leaves and branches getting in the way. They can quickly dry after a rain and warm themselves in the sunshine. Here at our place a great blue heron often perches atop a big dead hackberry tree next to the stream at the corner of our property. Vultures sometimes roost there, lingering on into the morning until the sun warms and dries 

their feathers. 

Our colony of purple martins used to loaf in our old Kentucky coffee tree top during the day. Their newly fledged young assembled there and were fed insects by their parents. 

For several years the very first male martin to arrive perched on this same treetop. Now the upper branches have disappeared. Our martins hang out elsewhere.

Even a healthy tree left to its own devices continues to drop dead limbs and branches throughout its life. Such fallen limbs teem with wood lice, ground beetles, centipedes, and slugs. Salamanders burrow underneath. The rotting wood becomes entangled by white, thread-like mycelia from mushrooms and other fungi as the remains gradually molder into the forest floor.

Witnessing our old tree’s decline offers me a new perspective on life, death and change.