11 Things You Didn't Know About Guardianship in Virginia
[Updated August 2024]
In the Commonwealth of Virginia, obtaining a legal guardianship is a complex undertaking and one you should not attempt without a Virginia estate planning attorney to guide you through the process. Adult guardianship is a legal process where a court appoints a surrogate decision-maker for individuals unable to make personal decisions due to mental or physical disabilities.
Navigating the intricate waters of Virginia guardianships requires the knowledge and skill of an estate planning attorney - and here’s why: what you don’t know can hurt you.
Virginia Legal Guardianships Remove Individual's Rights
Establishing a guardianship legally removes a person’s ability to make decisions for him or herself. This creates a formal legal relationship where the guardian is responsible for making decisions on behalf of the ward.
If the Court approves a full guardianship, a person will lose his right to vote, get married, enter into contracts, make purchases, make medical decisions, and a whole host of other decisions most people take for granted. The court can specifically limit the rights taken away.
Because of the extreme nature, the decision to enter into a guardianship should be one of last resort.
Guardianships Require Legal Court Proceedings
In order to obtain guardianship, a person must petition the Court, explaining the reasons they feel are pertinent for the Court to grant guardianship of the person. The court appoints a guardian based on the petition and evidence presented. The court determines the necessity and extent of the guardianship based on the evidence provided. Simply petitioning for guardianship does not guarantee one will be granted.
Only a Judge Can Determine if Guardianship is Necessary
Pursuant to Virginia law, a judge establishes the authority of the guardian and whether one is warranted. Based on the petition and subsequent reports, a judge will determine whether to proceed with guardianship and to what extent the guardianship should reach, requiring court approval to ensure compliance with state laws and legal standards.
The Person Subject to a Guardianship Has Their Own Appointed Guardian and Attorney
The person alleged to need a guardian must be provided an attorney to ensure their rights are not being unduly violated and that guardianship is the correct course of action. This attorney representing the alleged incapacitated person is called a guardian ad litem. The guardian ad litem ensures the individual's rights are protected and that the legal guardian's responsibilities are clearly defined. The guardian ad litem represents the interests of the individual subject to the guardianship.
The appointment of a guardian ad litem does not mean this is an adversarial proceeding. Rather, this means the Court is taking precautionary steps to ensure everyone’s rights are properly protected. However, the guardian ad litem has a responsibility to represent the best interests of the alleged incapacitated person, and the proceeding will become adversarial if there is doubt about the person’s incapacity or inability to manage his own personal or financial affairs.
The guardian ad litem does not represent either party. Their role is to investigate the statements in the petition and file a report with the court. The alleged incapacitated person can hire an attorney to challenge the petition if they desire.
Regular Reviews and Reporting Requirements
Once a guardianship is established, the guardian is not free from oversight. Virginia law requires regular reporting to the court regarding the ward’s well-being. These reports typically include updates on the ward’s health and living situation. Failure to comply with these requirements can result in legal consequences for the guardian.
Types of Reports Required
1. Initial Annual Report: The guardian must file an initial annual report within six months of being qualified as the guardian. The initial report reflects the first four months of guardianship.
2. Annual Reports: After the initial annual report, the guardian must file annual reports every 12 months within four months of the last day of the 12-month period covered by the previous annual report. Annual reports must include specific information, including but not limited to:
A description of the incapacitated person's current physical, mental, and social condition, including changes in diagnosis or assessment by any medical provider since the last annual report.
A description of the incapacitated person's living arrangements during the reported period.
The educational, social, medical, recreational, vocational, and other professional services received by the incapacitated person during the reporting period.
A statement of whether the guardian agrees with the current habilitation or treatment plan.
The names of any people whose access to visit, communicate, or interact with the incapacitated person was restricted and the reason for the restriction.
A statement of the frequency and nature of in-person visits by the guardian with the incapacitated person if the person does not live with the guardian.
These reports help the court monitor the ward’s condition and ensure that their needs are being met. The above list is a sample of the information required in the annual reports. The guardian has a duty to understand the law and comply with all filing requirements.
Legal Requirements and Consequences for Guardians of Minor Estates
Guardians must adhere to the reporting requirements outlined in Virginia Code § 64.2-1305. Failure to comply with these requirements can lead to several legal consequences, including:
• Court Hearings: The court may schedule a hearing to address any deficiencies in the guardian’s reporting. During this hearing, the guardian must explain any discrepancies or omissions in their reports.
• Removal of Guardian: If a guardian consistently fails to meet their reporting obligations or mismanages the ward’s assets, the court has the authority to remove them and appoint a new guardian.
• Financial Penalties: The guardian may be held financially liable for any losses incurred due to negligence or mismanagement of the ward’s assets.
Resources for Guardians
To assist guardians in meeting their reporting obligations, the Virginia Department of Social Services provides guidelines and forms for submitting required reports. Additionally, the National Guardianship Association offers resources and education on best practices for guardianship.
Guardianship Can Be Temporary or Permanent
Not all guardianships are permanent. Temporary or emergency guardianships can be established when immediate decisions are needed to prevent harm to the individual. These are often short-term solutions until a more permanent arrangement can be assessed and established by the court.
The Role of Family Members in Guardianship
Family members often play a significant role in guardianship proceedings, either by petitioning for guardianship or being appointed by the court, as guardians. However, disputes among family members can complicate the process. It’s not uncommon for multiple family members to seek guardianship, leading to contested hearings where the court must decide who is best suited for the role.
Costs Associated With Guardianship
Guardianship proceedings can be expensive, involving court costs, attorney fees, and ongoing expenses for managing the ward’s affairs. These costs can be burdensome, particularly if the ward has limited financial resources. Understanding the financial implications beforehand is crucial for anyone considering petitioning for guardianship.
Alternatives to Guardianship for Minor Children
Other legal arrangements, such as custody or adoption, might be more appropriate for minor children, depending on the child and circumstances. Guardianship is typically used when parents cannot care for their children temporarily, whereas adoption provides a permanent legal parent-child relationship.
Revoking or Modifying Guardianship
Guardianship is not always a lifelong arrangement. If circumstances change, such as an improvement in the ward’s condition, it is possible to petition the court to modify or terminate the guardianship. This process also requires legal proceedings and the court's approval to ensure that it is in the best interest of the ward.
Expanding your understanding of these aspects can better prepare you for the responsibilities and challenges associated with guardianship in Virginia. Whether you’re considering petitioning for guardianship or are already serving as a legal guardian, having a knowledgeable attorney by your side can make a significant difference.
There Are Legal Alternatives
Consider a durable power of attorney. This is a less invasive approach to guardianship and still allows the appointed person to make decisions on behalf of the individual. This alternative does, however, require the individual to have the capacity to sign over their rights and can be revoked by the individual at any time while he has the mental capacity to do so. An appointed guardian, on the other hand, is responsible for making decisions for a child under court order, including providing care and maintaining the ward's property.
Consider a living trust as a vehicle for managing and administering assets when the individual becomes incapacitated. This alternative also requires that the individual have the capacity to agree to the trust, so advance planning is required. Managing a child's assets, such as inheritances or lawsuit awards, through a court-appointed guardian is crucial to safeguarding these assets.
Consider limited Virginia guardianships. While this approach is more invasive than a power of attorney or living trust, it is less invasive than a full guardianship. With this approach, only specific rights are removed from the individual. For instance, limited guardianship may be set up to only remove a person's financial and medical decision-making rights while still allowing the individual to purchase daily goods and lead an otherwise ordinary life.
In cases where the court appoints someone other than the child's parent, it is important to understand the legal distinctions between guardianship and adoption. Limited guardianship, in most cases, may involve managing the individual's personal affairs and property while allowing them to maintain some decision-making rights.
Experience You Can Trust
The decision to begin guardianship proceedings is not one to take lightly, nor is it one to navigate without the assistance of an attorney. With expertise and years of experience in the field of legal guardianship, choosing the right attorney is paramount. Schedule a consult with Virginia guardianship attorney Stephen Thienel today. Mr. Thienel has decades of experience assisting individuals with their estate plans throughout Maryland, Virginia, and the District of Columbia.
