understanding guardianship

What is guardianship?

Guardianship is a legal process utilized when a person is unable to make safe decisions about himself and/or subject to exploitation or influence. Considering guardianship is a legal matter that should be carefully considered from all perspectives.


Does my loved one need a guardian?

Each family situation is unique, and guardianship is not one-size-fits-all. Some considerations for guardianship should include:

  • Does your loved one have the ability to navigate community services, such as going to the grocery store, post office, bank and public transportation without support?
  • Does your loved one have the ability to complete daily hygiene routines and maintain a safe and habitable residence on their own?
  • Does your loved one know how to respond in an emergency situation?
  • Does your loved one avoid common dangers, such as traffic?
  • Does your loved one have the ability to manage a bank account and pay his or her bills?
  • Does your loved one have the ability to avoid financial exploitation?

The Alternatives to Guardianship Project has developed a checklist that may guide your decision in pursing guardianship and less restrictive options.


What does a guardian do?

A guardian performs a number of functions for individuals who have been deemed incapacitated through the circuit court. Some functions include, but are not limited to:

  • Determining where the person may live
  • Whether or not the person may enter into a marital relationship
  • How income of the the person may be spent
  • Determining who provides medical treatment to the person and the types of treatments they receive
  • Determining if the person may vote
  • Determining if the person may enter into legal contracts

What are the types of guardianship?

Full guardianship

This is the most restrictive of all forms of guardianship. Full guardianship is a collection of all the responsibilities and involves controlling every aspect of the person's life. This type of guardianship is useful for individuals with a disability so severe that they are not capable of making any type informed decisions.


Limited guardianship

This is the "middle ground" of guardianship. This type of guardianship gives the guardian limited responsibility over certain aspects of the person's life rather than giving virtually complete responsibility over the person's major life decisions. These responsibilities often include the right to enter into a financial contract, choose educational option, receive medical care, enter into martial relationships.


Are there less restrictive options than guardianship?

Yes! There are many options, including:

  • Medical power of attorney: This is an agreement that grants an individual the authority to act on someone else’s behalf for health-related matters.
  • Durable power of attorney: This is a legal document that allows the person to designate a trusted individual to make health care and end-of-life decisions on their behalf.  
  • General power of attorney: This is a legal document that allows a person to select another individual, known as an agent, to handle all aspects of their personal and business monetary actions on their behalf
  • Representative payee: A respresentative payee is person who acts as the receiver of Social Security Disability or Supplemental Security Income for a person who is not fully capable of managing their own benefits. 

I've considered all of the options and feel I should move forward with obtaining guardianship. What is the process?

  1. A petition is filed for the appointment of a legal guardian or conservator in the county or city where the person lives
  2. A guardian ad litem (GAL) is appointed by the circuit court to represent the interests of the person. The GAL investigates the filed petition and files a report with the court on his or her fundings.
  3. The person is served with the requirement of notice. Content of the notice must be filed in 14 point font and detail the purpose of the proceedings. It must also include the right of the person to obtain legal counsel.
  4. A report, completed by a physician, psychologist or another licensed professional, such as a social worker, will report on the extent of the person's limitations, an assessment of the person's mental and physical impairments, the date of examination and a signature of the professional conducting the evaluation.
  5. The person must be advised of their rights.
  6. A hearing occurs in the circuit court. This is attended by the person filing for guardianship and the person in which guardianship is being sought (the respondent) Each party may present witnesses and evidence that the person is in need of guardianship.

This is intended for informational purposes only and is legal advice. Consult an attorney for more information and guidance regarding the guardianship process.

Additional Resources

 Understanding supported decision-making

Attorneys

  • Adrian & Vondy is a local firm with experience in all aspects of guardianship law.

Filing for guardianship

  • Provided by the Virginia State Bar for the Office of the Executive Secretary, this guide will explain the process of filing for guardianship, with links to all applicable forms.