The attorneys at MartinWren, P.C. are experienced representing parties in Virginia guardianship and conservatorship proceedings. Under Virginia law, a guardian or conservator can be appointed once a court determines that the individual who is the subject of the guardianship or conservatorship proceeding—called a “respondent”—is “incapacitated.” An adult respondent is incapacitated under Virginia law when that person has been determined by a court to be “incapable of receiving or evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity” to perform the basic requirements for his health, care, safety and other needs without assistance of another. In the context of a conservatorship proceeding, an individual is incapacitated if the person is unable to manage his or her financial affairs or provide care for dependents without the assistance of a conservator.
For a guardian or conservator to be appointed for an individual, it is first necessary that a detailed petition be filed with the local circuit court. The petition must, among other things, identify the respondent and his or her relatives, describe the nature and extent of the respondent’s incapacity, describe the medical services currently being given to the respondent and the extent to which the respondent’s condition can improve, provide the name of a proposed guardian and conservator, indicate whether the respondent has a power of attorney, identify the respondent’s native language, and identify the respondent’s financial resources, including property, anticipated annual gross income, other receipts, and debts.
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Once a petition for a guardian or conservator is filed, the Court will appoint a guardian ad litem to represent the respondent’s interests. The guardian ad litem will meet with the respondent, evaluate the respondent’s capacity, and prepare and file a written report with the Court about whether a guardian should be appointed. In the event the guardianship or conservatorship is contested or there is a dispute over who should serve as the respondent’s guardian, the guardian ad litem can make a recommendation to the Court. The Court is not bound by the guardian ad litem’s recommendation but the Court will likely give it considerable weight given that the guardian ad litem is appointed to pursue the best interests of the respondent.
Virginia law requires that the respondent be medically evaluated as part of the determination of whether the respondent has capacity to make basic decisions about daily living. The medical evaluation will describe the extent of the respondent’s incapacity and any functional impairments, assess the respondent’s mental and physical condition, and indicate whether the respondent can learn skills to improve the ability to care for him or herself. The Court may permit the petition to proceed without a medical evaluation so long as the guardian ad litem consents to proceeding without it.
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If appointed, a court-appointed individual will be empowered to make decisions for the respondent on such areas as “support, care, health, safety, habilitation, education, therapeutic treatment, and residence.” The Court has discretion to limit the powers of a guardian based on the respondent’s ability to care for themselves, and the Court has discretion to fashion an award that, wherever possible, seeks to preserve as much autonomy for the respondent as possible.
If you are interested in learning more about how to proceed with a guardianship petition on behalf of a loved family member or friend, please contact either Robert E. Byrne, Jr. or John B. Simpson at (434) 817-3100.
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