How To Become a Guardian in Virginia

In a previous blog, we discussed the different types of adult guardianships. In this blog, we’ll discuss how to become a guardian. Becoming a guardian for a loved one is a significant responsibility that requires careful consideration and adherence to legal procedures. If someone close to you becomes incapacitated, you might need to step in and seek guardianship in Virginia. This blog will explain the process, helping you understand your responsibilities and the legal requirements involved.

What is an “Incapacitated Person”?

Before discussing how to become a guardian, it’s important to understand how Virginia defines an “incapacitated person.” According to Virginia law, an “incapacitated person” means 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:

• Meet the essential requirements for their health, care, safety, or therapeutic needs without the assistance or protection of a guardian

Guardianship becomes necessary when a person meets this definition of incapacitation. It's important to note that poor decision-making alone doesn't necessarily mean someone is incapacitated. The court looks for an inability to process information adequately, regardless of the quality of decisions made.

Understanding Guardianship

Guardianship is a legal arrangement where the court appoints someone (the guardian) to make personal and health-related decisions for an incapacitated person. This can include decisions about living arrangements, medical care, and overall well-being.  The incapacitated person could be in this situation due to various reasons, such as mental illness, disability, or age-related conditions. It's important to note that managing financial affairs falls under conservatorship, which is a separate legal arrangement. In Virginia, guardianship is not taken lightly, as it involves making crucial decisions about someone else's life. 

The Guardianship Process in Virginia

Filing the Petition

To initiate the guardianship process, you need to submit a petition to the circuit court. As the petitioner, you must clearly explain why the person, known as the respondent, needs a guardian. The petition should be filed in the circuit court for the locality where the incapacitated person currently resides or where they lived before moving to a care facility.  Before filing, it’s often beneficial to discuss your intentions with the respondent's immediate family members to ensure everyone is on the same page. The necessary information for the petition is specified in Virginia Code Section 64.2-2002.

Evaluation by a Guardian Ad Litem

After filing the petition, the court will appoint a Guardian ad Litem (GAL) to assess the situation and provide an objective report to the judge. The GAL's role is to offer the court a clearer understanding of the case, without representing either you or the respondent. The respondent retains the right to hire their own attorney or request that the court appoint one if necessary.

Notice and Evidence

The respondent must be personally served with the notice of the hearing, a copy of the petition, and the order appointing the GAL. As the petitioner, you are responsible for gathering and presenting the evidence that demonstrates the respondent's incapacity and the necessity for a guardian.

The Guardianship Hearing

A hearing will be scheduled where you will present your case. The respondent has the right to attend and may be represented by a lawyer. The judge will review the evidence, including the GAL's report, to decide if guardianship is warranted. Family members who did not file the petition can attend the hearing and express their views or file responses.

Court Order

If the judge decides in your favor, you or your attorney will need to prepare a court order for the judge to sign, officially appointing you as the guardian.

Qualifying as a Guardian

Once the court order is signed, you need to go through a qualification process with the Clerk of the Circuit Court. This involves taking an oath to dutifully carry out your responsibilities and securing a surety bond if the court requires it. It’s important to contact the Probate Department of the Clerk of the Circuit Court to arrange this qualification, preferably on the same day as the hearing or within thirty days of the court order.

Responsibilities of a Guardian

As a guardian, some of your responsibilities will include:

• Ensuring the incapacitated person has appropriate living arrangements 
• Making medical decisions on their behalf 
• Overseeing their mental and physical health care

Your role is to balance providing necessary care while allowing the incapacitated person as much independence as possible. Regular visits are crucial to understanding their needs and capabilities. You must also file annual reports with the local Department of Social Services detailing the person's condition and your recommendations.

Ending Guardianship

Your role as a guardian concludes when the incapacitated person either passes away or regains capacity as determined by the court. If the individual's condition improves or if you seek to be discharged from your duties, you must return to court to formally end your guardianship. 

Seeking Legal Assistance

Given the complexity of guardianship cases, working with an experienced attorney is advisable. An attorney for legal guardianship can help you:

• Determine if guardianship is necessary 
• Prepare and file the petition 
• Represent you at the hearing 
• Navigate the qualification process 
• Meet bonding requirements

Balancing Care and Independence

While guardianship grants you significant authority over another person's life, it's important to remember that the goal is to provide necessary care while preserving as much of the incapacitated person's independence as possible. Always consider their wishes and preferences when making decisions on their behalf. Becoming a guardian in Virginia is a serious undertaking that requires careful consideration and legal procedures. By understanding the process and responsibilities involved, you can make an informed decision about whether guardianship is the right choice for your situation. Remember, the ultimate goal is to ensure the best care and quality of life for your loved one while respecting their dignity and independence as much as possible.

Need Help Becoming a Guardian in Virginia? Contact PJI Law Today

Navigating the guardianship process can be complex and emotionally taxing. At PJI Law, we understand the importance of making informed decisions for your loved one’s well-being. Our team is committed to providing you with the personalized guidance and support you need during this challenging time. If you’re considering becoming a guardian for an incapacitated person in Virginia, our dedicated attorneys are here to assist you every step of the way. We can help you understand your responsibilities, prepare and file the necessary documents, and represent you in court. Don't go through this process alone. Contact the experienced team at PJI Law for a consultation with an adult guardianship lawyer. Call us today at (703) 865-6100 or reach out through our secure online form. Let us help you ensure the best care and quality of life for your loved one. Copyright © 2024. PJI Law, PLC. All rights reserved.