Because not every adult who is alleged to need a guardian is actually incapable of managing his or her own affairs, there are provisions in the law to protect his/her rights during a guardianship proceeding. The fact is, simply making poor choices and showing bad judgement does not render one incompetent in the eyes of the law. There are stipulations that must be met in order to determine if a person requires the services of a guardian or conservator, and in order to determine if these have been met, a petition is filed. At that point the person who allegedly needs a guardian, known as the “respondent,” is notified of the petition. The respondent is also advised of the hearing date and his/her legal rights. The respondent has the right to be present at the hearing, request a jury trial, and cross-examine witnesses. A copy of the notice is also provided to the respondent’s spouse, parents, adult siblings, and adult children or at least three other known relatives. In other words, people who (should) have the respondent’s best interests at heart are notified.
Role of the Guardian ad litem in Virginia
The Virginia court will then appoint a Guardian ad litem (GAL) whose sole purpose is to determine whether guardianship is in the best interests of the respondent. The GAL does not represent the individual, only best interests. For example, the respondent may say “I don’t need a guardian. I can handle my own affairs.” The GAL will certainly represent this to the Court; however, the GAL can also suggest that the respondent is incapacitated and in need of a guardian. There is no obligation for the GAL to argue the positions of the respondent. There is no attorney-client privilege between a GAL and the respondent. Anything that the respondent says to the GAL may be reported to the court. After interviewing the respondent, investigating the petition, and consulting relevant medical professionals, the GAL prepares a report for the court with a recommendation for the respondent’s future independence.
How do Virginia Courts determine the needs and level of incapacity?
The court must determine if the respondent is capable of receiving, evaluating, and responding to people and events in his/her environment. Is the respondent able to meet the essential requirements of his/her healthcare without the assistance of a guardian? Is the respondent able to manage his/her financial affairs and provide support for him/herself without the assistance of a conservator?
The court takes the GAL’s view of the respondent’s current situation and considers the following in determining the guardianship and services necessary on the respondent’s behalf:
- What are the limitations of the respondent?
- How self-reliant is the respondent? Is this condition likely to change?
- Are less restrictive options available? Is an advanced directive or durable power of attorney established?
- Is the respondent in danger of neglect, exploitation, or abuse?
- What are the immediate and long term responsibilities of the guardian or conservator?
- Is the proposed guardian or conservator well suited for the required duties?
The respondent’s best interests are the only concern in this proceeding. If a guardian or conservator is appointed, he or she is in service until the respondent’s death or another petition is filed. If the incapacitated person’s condition changes, a petition can be filed to terminate or change the guardian or conservator. Likewise, if conditions in the guardian or conservator’s life change, a petition can be filed to have another appointed by the circuit court.
Guardianship law in Virginia is fact specific. Contact a Virginia guardianship attorney.
There are many factors to consider when determining if guardianship or conservatorship is the appropriate course of action for an adult who needs help meeting the demands of daily life. If you have concerns about a loved one, please call our office to discuss whether filing a petition is right for the situation. Likewise, if someone has filed a petition to establish guardianship over you and your affairs, and you would like to contest it, please call our office to discuss your matter.
Ryan C. Young | Richmond, Virginia Attorney | Conservatorship & Guardianship Attorney
