What is Legal Guardianship?

Guardianship is a legal arrangement in which an adult is appointed to manage the affairs of another adult because they are incapable of doing so for themselves. The person who cannot manage their own affairs is referred to as the “incapacitated person,” and the adult appointed to manage their legal affairs is referred to as a “guardian” or “conservator.”

This type of arrangement differs from that of child custody as it involves an individual who is at least 18 years of age. However, parents should understand that if they are the parent of a disabled child, they may also need to be appointed as a legal guardian for their child when that child reaches legal age. Guardianship is also used to manage the affairs of the elderly, who, for one reason or another, are incapable of doing so for themselves.

Typically, the guardian is given the legal authority by the Commonwealth of Virginia to manage the various affairs of the person who is considered to be incapacitated and cannot do so for themselves. This can include the authority to decide important medical, financial, and legal decisions. Guardianship arrangements can vary from a short amount of time or can be long-term. Each case is unique and has its own set of circumstances that must be considered.

When Should I Begin to Think About Guardianship?

Estate planning is a valuable tool in which individuals can outline their wishes through the use of powers of attorney, healthcare powers of attorney, and trusts so as to avoid possible future litigation as to who has the power to make essential decisions for them. That being said, guardianship is also a valuable legal method for assuring that an individual who is not capable of conducting their own affairs will still have their assets and other financial considerations properly managed. If you are the parent of a child who is under the age of 18 years old and has serious mental or physical disabilities, you need to be thinking about guardianship for when they reach adulthood. If you know that they are incapable of making decisions for themselves once they turn legal age, you may begin the process six months prior to their 18th birthday.

If you are the spouse, relative, or close friend of an adult, for example, an elderly individual who seems to be declining in their mental abilities or is no longer capable due to age, injury, or disability you should be planning on filing a petition for guardianship as soon as possible. Cases can take time to make their way through the court system. Any amount of time that you delay could cause serious issues for the individual who needs help.

What is the Process for Obtaining Guardianship in Virginia?

The first step in obtaining guardianship is to file a petition with a Virginia Circuit Court contending that there is a resident of Virginia who needs to have a guardian or conservator appointed to manage their affairs. This petition must be filed in the city or county where the individual in question resides. After the legal petition is filed, a hearing will be set for the court to hear evidence as to why a guardian should be appointed if the court deems it necessary. The individual in question is referred to as the respondent. Based on the evidence presented the court will make a decision as to whether or not a guardianship or conservatorship is needed. 

What Conditions Have to be Present for the Court to Appoint a Guardian?

The court will hold a hearing to determine whether or not the individual in question is truly unable to make important decisions for themselves. One possible condition that would cause the court to appoint a guardian would be the respondent’s inability to understand the varying aspects of how to properly handle their own finances, living situation, or health care. Another significant issue that could be considered in a case of determining if guardianship is necessary will be if the respondent lacks the ability to clearly communicate their wishes regarding the matters before the court. Other factors that could cause a court to consider guardianship are as follows:

• The individual is mentally challenged.
• The individual has suffered a stroke or a serious brain injury.
• The individual is in a coma.

Because of the highly complex nature of guardianships, it is recommended that you retain an attorney who is knowledgeable in this area of law. The attorneys at our law firm can advise you as to what would be the best options in regard to guardianship planning or obtaining a legal guardianship as soon as possible if the circumstances require it. Contact our law firm and schedule an appointment to discuss your case.