VIRGINIA GUARDIANSHIP LAWYER

As a Virginia guardianship lawyer, I have the experience to assist you to obtain child guardianship, elder guardianship, incapacitated person guardianship, and mentally handicapped guardianship. Give me a call to discuss.

read below how guardianship is established in virginia

Which category do you fit into:

1. Minor Guardianship (VA Code §20-166)
2. Elderly Person Guardianship (VA Code §64.2-2001)
3. An incapacitated person Guardianship (VA Code §64.2-2001)
4. Guardianship of a mentally handicapped person. (VA Code §64.2-2001)

Guardianship of a Minor 

Proceed with caution. When seeking to become a guardian of a minor or a guardian for your child, be cautious of the extent and duration of the guardianship.

If the guardianship is entered into for an extended period of time you run into the risk of giving the guardian (grounds, standing, power, authority, leverage) to seek custody. 

• End-of-Life Planning

However, there are many reasons why someone may seek guardianship for a child.

Whatever the reason you must do so in a way that best conveys your wishes.

If you are looking to appoint a guardian over your child in the event something happens to you, you may want to create a Will and/or advance directive.

Will’s are generally used to divide up a person’s property that is remaining after all debts have been paid off.

Will’s may also be used to provide a guardian for minor children, pursuant to VA Code §64.2-1701(A)(i).

An advance directive is a document such as a living will, health care power of attorney, or any other document that provides end-of-life care instructions. 

• In Case of Emergency Measures

If you are looking to give another person the ability to make medical, educational, and/or other major decisions for your child on your behalf due to your inability to be present then you most likely should seek a power of attorney.

This document will give the person of your choice the ability to act as a parent to your child also known as an attorney-in-fact.

A power of attorney is only valid for 180 days at a time.

(At the end of 180 days or before, you may create a new power of attorney that lasts, again, for 180 days.) If you wish to renew it by executing another power of attorney you may. 

• Parent(s) Estate (Testamentary and Intestate) 

A parent can pass property down to their children in two ways.

Either through testacy which is with a Will or intestate succession which is without a Will.

Of course, a Will, when properly executed, will be the best way to devise your property according to your wishes.

However, in the case of an invalid Will or intestacy, your property will be devised through the state’s intestacy laws.

If there are minor children then the court may appoint a guardian over the child’s estate.

This means that whatever inheritance that is left for the minor child will be under the control of the guardian until the minor child reaches the age of majority which is, in Virginia, 18 years old. 

Guardianship of an Elderly Person Explained by Virginia Guardianship Lawyer

Our parents spend their lives taking care of us.

Now it is our turn to take care of them. 

Sometimes age gets the best of us and we need a little extra assistance handling financial affairs, healthcare needs, or other everyday activities.

An advance directive will help bring peace of mind to everyone involved.

An elderly person with the mental capacity to understand and appreciate the terms and conditions of an advance directive may have one created and signed.

They may also have the document signed by a proxy if they are unable to physically sign the document themselves. 

Often times a health care power of attorney comes in handy for the elderly who are battling certain diseases and are in and out of the hospital frequently.

In which case they may want to ensure that their needs are taken care of by someone they trust.

This is when they will appoint a family member or friend as their power of attorney for medical purposes.

This person will have the power to determine treatment plans, whether or not to keep the person on life support, decisions on surgical procedures, and any other necessary difficult medical decisions. 

The person who the advance directive, if for is called the principal and the person who is given the authority to act on the principal’s behalf, is called the agent or attorney-in-fact.

An advance directive will not be valid if the principal does not have the mental capacity to understand the terms and conditions of the advance directive.   

In the event that the elderly person is not able to make sound decisions for themselves, the court can step in, after first determining that the person is incapacitated in accordance with VA Code §64.2-2001.

After the person has been determined to be incapacitated by the Court anyone can petition the Court to become their guardian.

Guardianship of an incapacitated person or mentally handicapped person

Guardianship for either an incapacitated person or mentally handicapped person may need to go through the court system. An incapacitated person is someone who may be in a coma or vegetative state.

If they did not previously appoint someone to be their power of attorney there may arise issues of who may have the final say in the care of the incapacitated person.

In which case the court may be utilized to appoint someone to that position.

In contrast, someone with a mental handicap may have been that way since birth.

Generally, the guardian will be a parent but the court can decide on a new guardian if the parent(s) are deceased or unfit to care for the person any longer. 

Under VA Code §64.2-2001, a petition must be filed in court in order for the Court to appoint a guardian for someone.

A guardian can be appointed for someone over the age of 18 or a minor.

Pursuant VA Code §64.2-2002 anyone can file a petition to appoint a guardian over another.

Once the petition is filed the Court will appoint a Guardian ad Litem (hereinafter GAL), which is a person who represents the best interest of the person who is in need of a guardian.

The  GAL will conduct interviews with all parties involved in order to come up with a recommendation for the Court. The GAL will be the voice for the incapacitated person. 

A guardian is a person who takes care of the needs of another. It can be a parent, an adult child, a friend, or someone through the state.

There are a few reasons, as discussed above, for having a guardian appointed ranging from a guardian for children in the absence of a parent to elderly parental care.

Whatever the reason for seeking a guardian you want to be sure that the correct documents are drafted and executed properly.

Call on the attorneys at the American Lawyer’s Group, PLLC. to help you with your guardianship needs.