Medical Evaluation in a Contested Guardianship/Conservatorship proceeding in Virginia
Guardianship and Conservatorship proceedings which are less contentious require a lesser amount of work for the Petitioner and their attorney. Often, the Respondent has already been diagnosed with an illness causing mental incapacity or the inability to function. But, what happens if there has never been such a diagnosis? Many times, the family has a vague sense that something is wrong with the person, but no such diagnosis has been made. This can cause an extremely delicate situation for the family members who must convince such a person to undergo a mental evaluation.
There are instances where the Respondent fights the Petition ardently and will not even consent to a mental evaluation by a trained specialist. Many times, the alleged incapacitated person is in denial, truly does not comprehend the need for an evaluation or is embarrassed to undergo such an evaluation.
The family should first start by approaching the supposed incapacitated person and encouraging them to undergo an evaluation which will explore at their mental capacity. Obviously, once lawyers become involved, a person’s natural defenses go up. If the person refuses to submit to such an evaluation, the family members are left with no other choice but to bring the Petition for Guardianship/Conservatorship and to seek an order from the court compelling the Respondent to submit to such an examination.
Rule 4:10 of the Rules of the Supreme Court of Virginia states that “When the mental or physical condition…of a party…is in controversy, the court in which the action is pending…may order the party to submit to a physical or mental examination by one or more health care providers…employed by the moving party.” In Virginia, this will require a separate Motion to Compel a Mental Evaluation. The Petitioner will select the clinical professional who is to conduct such an evaluation and must pay for the evaluation. If Guardianship/Conservatorship is granted, the costs may be reimbursed from the Respondent’s (Ward) finances. For a list of who is able to provide such an evaluation, look to Va. Code § 8.01-581.1. While the person must be licensed, it does not require a highly specialized medical doctor.
Whoever is chosen to perform the evaluation must be familiar with this type of proceeding and what is required to have a person declared incapacitated. It is not enough for the examiner to simply say that the person “suffers from dementia.” A more thorough report should provide detailed examples of how the respondent’s everyday life would be affected by their incapacity.
I recognize that this may be an extremely emotionally frustrating time for the Respondent and their family (including the Petitioner). It is always easiest to obtain Respondent’s approval of such an evaluation. However, I am well aware that this is not always practical. There may be other family members who fight the Petition as well. Nevertheless, if the person is truly in need of assistance, the family should set their concerns aside and proceed with a Guardianship/Conservatorship petition. After all, if the incapacitated person is left alone, it could lead to a far worse outcome.
NOTICE: The above information is general in nature, and is offered to increase public knowledge and awareness. It is not designed to provide advice on specific case situations.
Ryan C. Young | Guardianship for Incapacitated Person | Richmond, Virginia
