By: Ryan C. Young, Virginia Attorney
In 2013, the Virginia legislature made changes to the provisions of the Code of Virginia concerning the hearing on a petition for guardianship and/or conservatorship of an incapacitated adult. As part of the changes, Sec. 64.2-2007 was changed to state that a hearing on the petition must be held within 120 days of the filing of the petition. See 2013 Va. ALS 523. However, the Code also allows the trial judge to postpone the hearing past the 120 day mark “for cause”. Essentially, the trial court is granted the discretionary authority to extend the final trial date.
At the time of this writing, there is no reported case that I am aware of which says a petition must be dismissed if brought after 120 days from the date of the initial filing. In my experience, the 120 day rule is being interpreted by the courts as nothing more than a loose guideline or statement of preference. I would greatly appreciate hearing from others if they have experienced the opposite in their jurisdiction.
Since we are talking about removing someone’s civil rights as part of a guardianship and/or conservatorship proceeding, I believe that the legislature should revisit the current language of the Code surrounding the 120 day rule. At present, it is being interpreted as nothing more than a mere preference.
Virginia Guardianship Attorney | Richmond, VA