Review Hearings: Effective 7/1/2023, Courts are required to establish a schedule for periodic review hearings. The first review hearing must be scheduled no later than 1 year after the date of the original hearing. Subsequent review hearings may be scheduled every 1 to 3 years after the initial hearing. Review hearings may be waived by the Court if the person's condition is unlikely to improve, no questions were raised about the suitability of the guardian, and no one contested the appointment.
Petition for Review Hearing: Any person may file a petition to hold a periodic review hearing prior to the scheduled date. The Court will hold an earlier hearing upon good cause shown.
Presumption of Capacity: In Virginia, when your child turns 18, all decision-making rights are transferred by law from you to your child and he or she is presumed by law to have the capacity to make those decisions.
Guardianship: In Virginia, guardians are appointed by a circuit court to make decisions about the personal life and affairs of the incapacitated adult. The primary responsibilities of the guardian are to make decisions about where the incapacitated adult will live and how health care and personal care decisions are made.
Conservator: In Virginia, conservators are appointed by the circuit court to manage the incapacitated adult’s finances. However, adult children with disabilities seldom require a conservatorship because they typically have no assets, disability benefits can be paid to a representative payee, and trust assets are managed by the trustee.
Obtaining a Guardianship in Virginia: The process, in general, includes (1) filing a petition in the local circuit court, (2) obtaining a medical report, (3) court appointment of a guardian ad litem, (4) personal service to the allegedly incapacitated person explaining his or her rights and providing the date and time of the hearing, (5) providing notice to third parties named in the petition, (6) a court hearing, and (7) qualification before the probate clerk.
Requirement: As of 7/1/2023, if the incapacitated person does not live with you, then you must visit them as often as necessary to be able to make informed decisions for them, but in any case, not less than 3 times a year, with at least 1 visit occurring every 120 days. Guardians must visit in person at least 1 time per year but the other visits may be done via virtual conference or video call.
Loss of Rights: The appointment of a Guardian or a Conservator removes a person’s right to make their own decisions. Less restrictive alternatives that will protect the person's interest should always be considered. A Durable Power of Attorney and an Advance Directive may make obtaining a Guardianship and/or a Conservatorship unnecessary.
Durable Power-of-Attorney: With a durable power-of-attorney, a person can give his or her Agent the authority to act on their behalf, to manage finances, apply for Medicaid, and sign up for services, etc.
Advance Medical Directive / Medical Power of Attorney: With an Advance Medical Directive, a person can appoint an Agent to make health care appointments, fill prescriptions, help make medical decisions, and to obtain medical records.
Restricting Visitation: Guardians may not restrict visitation with the incapacitated person unless it is necessary to prevent physical, mental, or emotional harm. If you decide to restrict someone’s visitation, you must provide them written notice and copies of the written notice must be provided to the local DSS and to the Circuit Court that appointed you. The person has a right to contest such restriction in Court.
Reporting Requirements: As a court appointed guardian, you are required to file reports with your local DSS. The first report is due within 6 months from the date of your qualification and covers the first 4 months of the guardianship. EXAMPLE: For a guardian appointed on 1/1/2023, the first report will cover the period from 1/1/2023 to 4/30/2023 and is due no later than 6/30/2023. After the first report has been filed, reports are due annually. Each report covers a 12-month period and is due within 4 months from the last day of the 12-month period. If more than 1 guardian was appointed, both guardians must sign the form.
Fee: There is a $5 filing fee that goes with each report.
Failure to Provide Report: Local DSS offices are supposed to send a list of guardians whose reports are more than 90 days overdue to the local circuit court. The court may subpoena you to show cause as to why you are not completing the reports. Worst case, the court can find you in breach of your responsibilities as guardian and make you pay the bond that is set forth in the guardianship order (typically $1,000). So please make sure you file the reports!
Form: Use the Form CC-1644 Report of Guardian for an Incapacitated Person that you received during your probate appointment.