When Is Guardianship of an Adult Necessary?

Patricia TichenorLegal

adult guardianship arrangement

Navigating the process of adult guardianship can be difficult, especially when it may not be clear when it is necessary for a loved one. Here’s everything you should know about petitioning for adult guardianship and conservatorship, as well as when it may be necessary.

What is adult guardianship?

Adult guardianship is the legal process whereby someone becomes the decision-maker for an adult who is unable to make decisions for themselves. Guardianship is often pursued in conjunction with conservatorship, also known as Guardianship of the Estate, which grants the legal right to manage the adult’s financial affairs and/or daily life.

There are several types of guardianship that can be granted over an adult with physical and/or mental disabilities:

  • Guardianship of the Person: In this form of adult guardianship, the guardian is only able to make decisions affecting the individual, such as those regarding medical treatments and personal needs.
  • Guardianship of the Estate: In this form of adult guardianship, the guardian is responsible for managing the individual’s estate. It is required when the individual has significant assets or in cases where an inheritance or another monetary windfall is anticipated.
  • Guardianship of the Person and Estate: In this form of adult guardianship, the guardian is responsible for making decisions regarding the individual and managing their estate.
  • Limited Guardianship of Person, Estate, or Both: This form of adult guardianship is used when the court determines the individual retains some capacity to make rational decisions.

The process of adult guardianship

File a petition

In Virginia and many other states, anyone can request a guardianship over a person of concern. Anyone seeking guardianship must first file a petition nominating either themselves or another qualified individual(s) to become the adult’s guardian. The petition must be filed in the adult’s county of residence.

A guardian can be any competent adult, such as a spouse, another family member, a friend, neighbor, or professional guardian. It is also possible for an organization, like a nonprofit agency, adult protective services agency, or a corporation, to be a guardian. The court can also appoint a guardian if a suitable one has not been found, considering how significant of a role they play in the adult’s life. Co-guardians can also be named by the court.

Arrange for service of the petition

After filing a petition for guardianship, you’ll have to arrange for it to be served to the respondent and provide notice about the hearing. Typically, the county sheriff or a private service will serve the petition.

Obtain a medical report

When initially calling for a guardianship hearing, make sure to obtain a medical report from a licensed physician that supports the need for a guardianship over the individual of concern.

Obtain the Appointment of a Guardian ad litem by the court

In Virginia and other states, when you initially file your petition for guardianship, you will also need to file a motion asking the Court to appoint a guardian ad litem (GAL), which is typically a licensed attorney specially trained and certified to serve as a reporter to the Court for cases which involve finding a person lacks the capacity to manage his or her personal care or financial affairs. This person will meet with the person against whom the Petition has been filed and interview the person who has petitioned to be the guardian or conservator. 

The GAL is responsible for investigating the claims of incapacity and the qualifications of the person seeking appointment as guardian or conservator, and, thereafter, the GAL prepares a formal report and recommendation for the Court’s review.  After all these steps are completed, the court will hold a hearing to determine guardianship.

Attend guardianship hearing

At the guardianship hearing, the court will determine whether the person of concern does in fact require guardianship and to what extent they need assistance. Then, the court then must decide if the person petitioning for guardianship is the best possible guardian for the individual. Though the protections of guardianship tend to vary from state to state, the adult in question is generally entitled to legal representation.

When should you consider adult guardianship?

In Virginia, a guardian is deemed necessary when a person lacks the physical or mental capacity to make responsible decisions or manage their financial and personal affairs. Contrary to popular belief, a developmental disability or mental illness is not enough to have someone declared incompetent, nor is making foolish or irresponsible decisions.

Trying to determine if your adult child or relative requires a guardian and/or conservator? Schedule a free 15-minute consultation to discuss your situation with My Legal Case Coach and discover if our DIY legal case form packets and virtual coaching services are a good fit for you.