The first step in any effort to obtain legal guardianship in the state of Virginia is to file a petition with the Virginia Circuit Court in the city or county where the person of concern resides, or where he or she resided prior to entering a nursing home or care facility. Anyone may file such a petition.
Source: The Virginia Poverty Law Center, via VALegalAid.Org
The law protects the rights of the respondent (person for who guardianship is being sought). The respondent must be given a copy of the petition, notified of the hearing and advised of his or her legal rights. The spouse, parents (if living), siblings and adult children of the respondent must be notified, or three living relatives if none of the above exist. The respondent has the right to legal representation, to be present at a trial and to cross-examine witnesses.
Source: The Virginia Poverty Law Center, via VALegalAid.Org
The court will appoint a guardian ad litem (“for the suit”), a third-party attorney, who will investigate the situation. The guardian ad litem will meet with the respondent, speak to the petitioner, interview family members, friends, neighbors and physicians. Following this inquiry period, the guardian ad litem will make a recommendation to the court.
–Valerie Geiger and Cary Cucinelli, attorneys, Cucinelli Geiger
For a guardianship to be granted, the person in question (respondent) must be found by the court to be incapacitated. Typically, the petition is accompanied by a physician’s certificate specifying the level of incapacity. In elderly people, this is typically connected to matters of dementia, including Alzheimer’s and Parkinson’s. –Jean Ball, attorney, Hale Ball
These factors must be considered by the court to determine if someone needs a guardian:
- The limitations of the respondent
- The development of the respondent’s maximum self-reliance and independence
- The availability of less restrictive alternatives, including advance directives and durable powers of attorney
- The extent to which it is necessary to protect the respondent from neglect, exploitation or abuse
- The actions needed to be taken by the guardian or conservator
- The suitability of the proposed guardian or conservator
Source: Virginia Poverty Law Center
