Disclaimer: This article is for informational purposes only and does not constitute legal advice.
Detailed Answer
Under West Virginia law, a guardian manages the personal needs of an incapacitated adult, while a conservator manages the person’s finances. You must file separate petitions under the Uniform Guardianship and Conservatorship Act (WV Code § 44A-2-1 and WV Code § 44A-3-1).
- Determine the need: Consult a physician to evaluate the individual’s cognitive and functional abilities. A sworn medical affidavit is required under WV Code § 44A-2-2(2).
- Prepare the petition: File in the circuit court of the county where the alleged incapacitated person resides. For guardianship, cite WV Code § 44A-2-1; for conservatorship, cite WV Code § 44A-3-1. Include the proposed guardian’s or conservator’s name, relationship, and a factual basis detailing the person’s incapacity.
- Serve notice: Provide notice to the proposed ward, spouse, next of kin, and any interested parties at least 14 days before the hearing, per WV Code § 44A-2-3.
- Appointment of a guardian ad litem: The court appoints a neutral guardian ad litem to represent the alleged incapacitated person’s interests, as required by WV Code § 44A-2-4.
- Attend the hearing: Present evidence of incapacity and the need for guardianship or conservatorship. The judge evaluates medical records and testimony to determine if the person meets the statutory definition of incapacity.
- Receive the court order: If the court finds the person incapacitated, it will issue an order appointing a guardian or conservator and may issue letters of guardianship or letters of conservatorship.
- Fulfill ongoing duties: Guardians must report annually on the ward’s condition and living arrangements. Conservators must file annual accountings of all financial transactions with the court under WV Code § 44A-3-8.
Helpful Hints
- Gather medical records early to support your petition.
- Choose a reliable guardian or conservator without conflicts of interest.
- Keep thorough records of all decisions and transactions.
- Consider less restrictive alternatives, such as a power of attorney, if appropriate.
- Seek legal counsel if the case is contested or involves complex assets.