When a guardianship or conservatorship petition for an incapacitated adult is initiated in Virginia, the court will enter an order at the end of the litigation. This order will lay out whether the court finds by clear and convincing evidence that the Respondent is an incapacitated person or not. If the court finds that they are incapacitated, a guardian and/or conservator will be appointed. This order could be in place for many, many years and does not change unless there is a subsequent order from the court.
When the condition of the Incapacitated Person has changed.
There are instances where people are only in need of a guardian for a period of time in their life. Obviously, someone with Alzheimer’s disease is not likely to improve in the future. Alternatively, what if the incapacitated person has a medical condition which does improve? In that instance, a petition may be brought to declare the incapacitated person restored to capacity. See Virginia Code Sec. 64.2-2012.
At the same time, the incapacitated person may have gotten worse since the initial order was entered. Keep in mind that some guardianships and conservatorships are limited in time and scope. For example, what if the incapacitated person was able to control one aspect of their life and can no longer do so. In that instance, a petition would need to be brought to extend the duties of the conservator.
When Guardian or Conservator must be changed.
A guardian or conservator acts as a fiduciary for the incapacitated person. This means that they must act in the best interests of the incapacitated person and faithfully carry out their duties. Sometimes the guardian or conservator simply cannot perform their tasks any longer. This might be because of their own health. In other instances, the guardian or conservator might disagree that they need to be replaced. For example, a friend or family member may notice that the guardian or conservator is not acting in the best interests of the incapacitated person. Common examples would include neglect or misappropriation of funds.
Who may bring the petition for restoration, modification, or termination of a guardianship order?
The Code of Virginia broadly allows any number of people to file a petition to amend a prior guardianship order for an incapacitated adult. The people who may initiate the petition are a) the incapacitated person, b) the guardian or conservator, or c) any other person. Va. Code § 64.2-2012(A). I intentionally highlight “any other person” since it is extremely wide. This could include a family member, acquaintance, neighbor, etc. Essentially, anyone who is concerned about the guardianship or conservatorship may initiate the petition.
Of course, the person petitioning the Virginia court must have worthy grounds to initiate the petition. The reasoning cannot be simply to get revenge on another family member. The person bringing the petition would have to be able to articulate their reasoning for bringing the petition. It would also be crucial to have facts supporting the petition.
Probably the most common complaint that I hear is family members complaining about how the current guardian or conservator is acting. Simply not getting along with that person is not sufficient grounds. However, I would likely encourage someone to bring such a petition if they have evidence that the guardian/conservator is acting in bad faith or not adequately serving the needs of the incapacitated person.
Ryan C. Young | Guardian & Conservator Law | Richmond, Virginia
