Detailed Answer
Under Virginia law, a guardian may oversee the person or estate (conservatorship) of an incapacitated relative. You must follow the protective proceedings set forth in the Virginia Code. Below are the key steps:
1. Determine Incapacity
Virginia Code § 64.2-2000 defines an “incapacitated person” as someone unable to manage property or financial affairs or to provide for personal needs due to mental or physical disability. You’ll need medical or psychological evaluations confirming the person’s inability to care for themselves or their assets.
Va. Code § 64.2-2000
2. File a Petition
File a petition in the circuit court of the county or city where the individual resides. Any interested person—often a family member or close friend—may petition the court. The petition must state the petitioner’s relationship, the alleged incapacity, and whether you seek guardianship over the person, the estate, or both.
Va. Code § 64.2-2002
Va. Code § 64.2-2003
3. Provide Notice & Preliminary Hearing
The proposed ward, close relatives, and any prior guardian or conservator must receive notice at least 21 days before a preliminary hearing. Service rules ensure everyone with an interest has a chance to object or propose alternatives.
Va. Code § 64.2-2005
4. Appointment of Counsel, Guardian ad Litem & Examiners
The court appoints an attorney for the respondent and a guardian ad litem if needed. Two independent examiners (usually social workers or healthcare professionals) visit the proposed ward, assess their condition, and file written reports at least nine days before the final hearing.
Va. Code § 64.2-2004
Va. Code § 64.2-2006
5. Final Hearing & Standard of Proof
The court holds a final hearing, where evidence must show by clear and convincing proof that the person is incapacitated and that guardianship is the least restrictive alternative. The judge explores less restrictive options like powers of attorney before granting a full guardianship or conservatorship.
Va. Code § 64.2-2007
6. Issuance of Guardianship Order
If the court finds incapacity, it issues an order naming the guardian of the person, guardian of the estate (conservator), or both. The order must specify the scope of the guardian’s powers and any limitations or reporting requirements.
Va. Code § 64.2-2008
7. Post-Appointment Duties
Guardians of the estate must file an inventory of the ward’s assets and annual accountings with the court. The guardian of the person must report significant changes in the ward’s condition or living arrangements.
Va. Code § 64.2-2009
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Always consult a qualified attorney for guidance tailored to your situation.
Helpful Hints
- Gather recent medical records and physician statements describing the incapacity.
- Consider less restrictive alternatives such as durable power of attorney or health care proxy first.
- Contact your local circuit court clerk for required forms, filing fees, and deadlines.
- Be prepared to propose a successor guardian or conservator in your petition.
- Maintain detailed financial records and file timely annual reports for estate guardianships.