Guardianship and conservatorship in Virginia is a legal option for individuals looking to care for adults that need the help of others for care and management of their finances.  The purpose of this post is to help with general information on the what, who, when, where and how involved with a petition for adult guardianship and/or conservatorship in Virginia.

WHAT?

In Virginia, an adult guardianship and/or conservatorship is created when a Circuit Court determines that an adult—or someone who is almost an adult—is incapable of managing their affairs. The Court appoints an individual or agency to manage the affairs of that incapacitated person.

WHO?

One of the most important things to know when determining whether a guardian and/or conservator is appropriate for a loved one is to know who is who.

• A “guardian” is a person appointed by a Circuit Court who is responsible for the personal affairs of an incapacitated person, including responsibility for making decisions regarding the person’s support, care, health, safety, habilitation, education, therapeutic treatment, and, if not inconsistent with an order of involuntary admission, residence. See Code § 64.2-2000.
• A “conservator” is a person appointed by the court who is responsible for managing the estate and financial affairs of an incapacitated person. See Va. Code § 64.2-2000. This can include a “limited conservator” or a “temporary conservator.
• An “incapacitated person” is an adult who has been found by a court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator. See Code § 64.2-2000. A finding that the individual displays poor judgment alone shall not be considered sufficient evidence that the individual is an incapacitated person.
• The “petitioner” is the person who files the petition with the Court asking for the appointment of a guardian and/or conservator. Often, the petitioner is the proposed guardian and/or conservator, but a petitioner may file a petition requesting that another individual or agency act as the guardian and/or conservator.
• The “respondent” is the incapacitated person for whom a guardian and/or conservator is being sought.

WHEN?

If the incapacitated person is above the age of 18, a petition for guardianship and/or conservatorship may be filed at any point after the individual has become incapacitated.

While a petition may be filed for a respondent who is under the age of 18, such petition may be filed no earlier than six months prior to the respondent’s eighteenth birthday. Va. Code § 64.2-2001(C).

WHERE?

A petition for guardianship and/or conservatorship is filed in the Circuit Court of the city or county in which the incapacitated person lives, or where he or she lived immediately prior to becoming a patient at a hospital. Va. Code § 64.2-2001.

HOW?

A petitioner files a petition for the appointment of a guardian and/or conservator, which must include the information outlined in Va. Code § 64.2-2002.Upon the filing of the petition, the Court appoints a Guardian Ad Litem to represent the interests of the respondent. The Court may also appoint counsel for the respondent, but is not required to.

Within 120 days of the petition, the court must hold a hearing to determine whether the appointment of a guardian and/or conservator is appropriate. If the Court determines by “clear and convincing evidence” that the respondent (1) is incapacitated and (2) is in need of a guardian or conservator, the court shall appoint a suitable person to be the guardian and/or conservator. See Va. Code § 64.2-2007.

If you or a family member have questions about adult guardianship and conservatorship, reach out to our attorneys at info@wmmlegal.com or (804) 423.1382 to set up an initial consultation.  We would like to help.