11 Things You Didn't Know About Guardianship in Virginia

Links to outside sources open in a new tab.

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 previous period. Annual reports must include information on the incapacitated person’s condition, living arrangements, services received, treatment plan agreement, visitation restrictions, and frequency of in-person visits.

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

Failure to comply with reporting requirements outlined in Virginia Code § 64.2-1305 can result in court hearings, removal of guardian, and financial penalties.

Resources for Guardians

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. These are often short-term solutions until a permanent arrangement can be assessed and established by the court.

The Role of Family Members in Guardianship

Family members often play a significant role, either petitioning for guardianship or being appointed as guardians. Disputes can complicate the process, and contested hearings may occur.

Costs Associated With Guardianship

Guardianship proceedings can be expensive, including court costs, legal fees, and ongoing management expenses. These should be considered by prospective guardians.

Alternatives to Guardianship for Minor Children

Custody or adoption might be more appropriate depending on circumstances. Guardianship is often used if parents cannot temporarily care for their children, while adoption creates a permanent parent-child legal relationship.

Revoking or Modifying Guardianship

If the ward’s condition improves, guardianship can be modified or terminated via court petition. This process also requires legal proceedings and evidence.

There Are Legal Alternatives

Durable Power of Attorney: Allows someone to make decisions on behalf of an individual. The individual must have capacity and can revoke it at any time.

Living Trust: Used to manage assets when an individual becomes incapacitated. Requires prior planning and capacity to create.

Limited Guardianships: Less invasive than full guardianship. Only specific rights (like financial or medical) are removed while allowing the individual independence in other areas.

Experience You Can Trust

The decision to begin guardianship proceedings is not one to take lightly. With expertise and years of experience in 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.