FIRST: Speak with a Virginia guardianship attorney to determine whether a guardianship petition is appropriate.
I know you’re probably rolling your eyes right now since this article is written by attorney. However, a guardianship petition is not always appropriate in every instance. In fact, guardianship or conservatorship should be the last resort. One of the first questions that the court will ask is whether there is a least restrictive alternative. Remember, when you are seeking an appointment of guardianship, you are taking away the civil rights of that incapacitated person.
When I first meet with the client who is concerned about a loved one, I always try to determine whether a guardianship proceeding makes sense from a practical or financial standpoint. Many times, potential clients come to me and say “so-and-so (or the internet) says I need to apply to become the guardian of my mother”.
SECOND: Determine whether the person is truly incapacitated.
The Virginia code requires that a treating physician or medical professional write a letter recommengin a guardian and/or conservator. The letter must state their belief that the alleged incapacitated person needs assistance with activities of daily living. It is possible to start a guardianship proceeding without this letter from a treating physician. It is certainly easier to have the letter and advance. Obviously, this is not practical in every situation. At some point in the proceeding a medical professional will likely need to be consulted to get their opinion.
THIRD: File a Petition seeking Guardianship and/or Conservatorship
I’ve explain the difference between Virginia’s guardianship and conservatorship in previous articles. The important thing to remember is that a guardian and conservator may be appointed in the same proceeding. They also don’t necessarily need to be the same person.
It’s important to recognize the appropriate jurisdiction for filing the petition. The petition should be filed in the circuit court where the incapacitated person resides or owns property. One issue that you should discuss with your attorney is whether the alleged incapacitated person has recently moved into Virginia or a new location.
There are many technicalities involved with the filing of the petition. This fully possible that a layman could draft a sufficient pleading, but the risk for errors is high. There are extremely important requirements which must be met in each and every petition for guardianship in Virginia.
Ryan C. Young | Guardianship Attorney | Richmond, Virginia
