West Virginia: Adult Guardianship and Conservatorship Petition Requirements

Requirements one by one

Proceeding and state terminology

West Virginia uses one Chapter 44A proceeding. A single petition may ask for a
guardian over personal affairs, a conservator over estate and financial
affairs, or both. Under § 44A-2-9(a), a mental hygiene commissioner may conduct
the hearing and recommend findings, but only the circuit court may enter the
appointment order.

Who may file and where

Section 44A-2-2(a) authorizes the adult, a caregiver or custodian, the care
facility, the adult's nominee, a de facto guardian or conservator, or any other
interested person, expressly including the Department of Human Services, to
file.

The petition goes to the circuit-court clerk in the adult's county of residence
under § 44A-2-1(a). If the adult has been admitted to a health-care or
correctional facility, the facility's county is also available. The first
circuit court has exclusive jurisdiction unless it finds transfer is in the
adult's best interests.

What the petition must contain

Section 44A-2-2(b) requires much more than names and addresses. The petition
identifies the ordered tier of nearest relatives; caregiver or facility and the
acts performed; de facto decision-makers; surrogate, durable financial power
of attorney, medical power of attorney, and living-will representatives; the
petitioner's lawyer; whether incapacity affects attendance; the type and reason
for relief; and current, proposed, and nominated fiduciaries.

For an individual proposed appointee, the petition gives age, occupation,
criminal history, and relationship. A request for limited relief identifies
the exact personal or financial areas to include. Before a conservatorship
hearing, § 44A-2-4 also requires a financial-resources statement listing, to
the extent known, the adult's property values, anticipated gross income, and
other receipts.

Proof required for appointment

Section 44A-1-4(13) supplies separate functional domains. Personal protection
asks whether mental impairment prevents effective information processing or
responses to the point the adult cannot meet essential health, care, safety,
habilitation, or therapeutic needs. Financial protection asks whether the
adult cannot manage property or financial affairs or provide support without
a conservator. Poor judgment alone is expressly insufficient.

Under § 44A-2-9(d), the petitioner must establish the statutory case by clear
and convincing evidence. The court then makes specific findings and legal
conclusions under subsection (e).

Alternatives the court must address

West Virginia treats existing planning documents as substantive alternatives.
Section 44A-1-3 says a living will, medical power of attorney, durable power of
attorney, other advance directive, or previously appointed surrogate may
"eliminate, limit or supersede" the need for a guardian or conservator.

Section 44A-2-10 requires the court to consider maximum self-reliance,
available less restrictive alternatives including advance directives, and the
extent of protection actually necessary. The resulting guardianship or
conservatorship must be the least restrictive possible, with no power extending
beyond what is absolutely necessary.

Notice, service, and hearing timing

After the petition and evaluation report are filed, § 44A-2-6(a) requires the
court to set a hearing within 60 days. The adult receives personal service of
the notice, petition, and evaluation report at least 14 days before hearing.
The adult cannot waive notice, and defective service is jurisdictional.

The petitioner also sends notice and the petition by certified mail at least
14 days before hearing to all listed people age seven or older and all listed
entities, then files the return receipts. The adult's notice uses large print
to explain appearance, counsel, objection, and the possible loss of personal
and property rights.

Counsel and hearing rights

Counsel is automatic under § 44A-2-7(a), subject to the adult's ability to hire
chosen counsel. The statutory role is hybrid: counsel recommends the adult's
best interests while also investigating the adult's desires, communicating
those desires to the factfinder, zealously representing the client's interests
and desires, and arguing to limit intervention to actual needs.

Section 44A-2-9(c) entitles the adult to attend, oppose the petition, present
evidence, compel witnesses, and confront and cross-examine every witness. The
hearing may occur where the adult is located and is closed to the public.
Except for a missing-person case, absence requires a physician affidavit,
qualified expert evidence of physical impossibility or significant health
harm, or proof the adult refuses to appear. The statute assigns factfinding to
the judge or mental hygiene commissioner and does not state a jury-trial right.

Medical evidence or court evaluator

Section 44A-2-3 ordinarily requires the petition to include a licensed
physician's or psychologist's report. It covers specific cognitive and
functional limitations, mental and physical condition, services, living or
treatment recommendations when personal authority is requested, necessity and
scope, attendance, medication effects, contributors, and examination dates.

For good cause, the court may allow filing without the report, but then orders
the necessary assessments and a later report. Section 44A-2-7(d) gives the
adult a separate right to a chosen independent expert who may evaluate and
present evidence. Chapter 44A does not universally add a court visitor to this
ordinary process.

Limits on the order

The order must identify the personal and financial areas transferred and make
specific findings that the adult meets the statutory definition. Section
44A-2-10(c) supplies the controlling limit: the appointment is "the least
restrictive possible," and its powers do not extend beyond what is "absolutely
necessary."

Sections 44A-2-11 and 44A-2-12 expressly authorize limited guardianship when
the adult can meet some personal needs and limited conservatorship when only
designated financial contexts warrant restricting legal rights.

Temporary relief is separate under § 44A-2-14. It requires immediate need,
significant-harm risk from following the ordinary timeline, and no effective
authorized decision-maker. The order lists the temporary powers and expires
within six months unless terminated or extended once for up to six months for
good cause after hearing.

What trips people up

The evaluation report travels with the petition. It is not ordinarily a
later optional exhibit. Filing without it requires good cause and a court order
for replacement assessments and a report.

Notice cannot be waived. Personal service on the adult at least 14 days
before hearing is jurisdictional, and the petitioner's certified-mail returns
for the other listed recipients must be filed by the hearing.

Counsel does not fit a simple advocacy label. The statute directs counsel
to recommend best interests, report those conclusions to the court, investigate
and communicate the adult's desires, and zealously represent the client's
interests and desires.

Common questions

Can one petition ask for both kinds of authority?

Yes. Section 44A-2-2 expressly permits a petition for a guardian, a conservator,
or both, and requires the requested type and reasons to be stated.

Is poor judgment enough?

No. Section 44A-1-4(13) expressly says poor judgment alone is not sufficient
evidence that the adult is a protected person.

May the adult obtain a different expert?

Yes. Section 44A-2-7(d) gives the protected person the right to an independent
expert of the person's choice to perform an evaluation and present evidence.

Must a full appointment be used once incapacity is proved?

No. Section 44A-2-10 requires the least restrictive possible appointment, and
§§ 44A-2-11 and 44A-2-12 provide limited personal and financial alternatives.

Statutes and sources

• W. Va. Code § 44A-1-3: advance directives and surrogates may eliminate,
  limit, or supersede appointment.
  Official text
  (accessed 2026-07-18).
• W. Va. Code § 44A-1-4(1): personal and financial roles, functional protected-
  person standard, limited appointments, and poor-judgment exclusion.
  Official text
  (accessed 2026-07-18).
• W. Va. Code § 44A-2-1(a): circuit-court venue and transfer.
  Official text
  (accessed 2026-07-18).
• W. Va. Code § 44A-2-2(a): broad standing and the combined petition checklist.
  Official text
  (accessed 2026-07-18).
• W. Va. Code § 44A-2-3: licensed physician or psychologist evaluation report.
  Official text
  (accessed 2026-07-18).
• W. Va. Code § 44A-2-4: conservatorship financial-resources statement.
  Official text
  (accessed 2026-07-18).
• W. Va. Code § 44A-2-6(a): 60-day hearing, 14-day nonwaivable personal service,
  certified mail, rights notice, and jurisdictional consequence.
  Official text
  (accessed 2026-07-18).
• W. Va. Code § 44A-2-7(a): automatic counsel, scope-limiting duties, and the
  adult's independent-expert right.
  Official text
  (accessed 2026-07-18).
• W. Va. Code § 44A-2-9(a): trier of fact, attendance and contest rights,
  clear-and-convincing burden, and specific findings.
  Official text
  (accessed 2026-07-18).
• W. Va. Code § 44A-2-10(a): alternatives, maximum independence, appointee
  selection, and least-restrictive order limits.
  Official text
  (accessed 2026-07-18).
• W. Va. Code § 44A-2-11(a): limited guardianship.
  Official text
  (accessed 2026-07-18).
• W. Va. Code § 44A-2-12: limited conservatorship.
  Official text
  (accessed 2026-07-18).
• W. Va. Code § 44A-2-14(a): temporary appointment threshold, powers, duration,
  notice, and review rights.
  Official text
  (accessed 2026-07-18).