Virginia Adult Guardianship / Conservatorship Petition Package

VIRGINIA ADULT GUARDIANSHIP / CONSERVATORSHIP PETITION PACKAGE

Petition for Appointment of Guardian and / or Conservator for an Incapacitated Adult

Statutory Framework: Va. Code § 64.2-2000 et seq.

Court of Jurisdiction: Circuit Court of the city or county where the respondent resides (or last resided before placement in an institution).

Standard of Proof: Clear and convincing evidence.

2023 Reform: Effective July 1, 2023, periodic review hearings are required — first within one year of appointment, then every three years (or less if ordered), unless waived by the court for limited reasons.

PART 1 — PRE-PETITION CHECKLIST

☐ Confirm respondent is a Virginia resident or has property in Virginia.

☐ Identify proper venue: circuit court of city / county where respondent lives, or where respondent lived immediately before entering a nursing home, assisted living, or other institution.

☐ Analyze less-restrictive alternatives BEFORE filing (Va. Code § 64.2-2007):
☐ Durable power of attorney (Va. Code § 64.2-1600 et seq. — Uniform Power of Attorney Act)
☐ Advance medical directive (Va. Code § 54.1-2981 et seq.)
☐ Representative payee
☐ Supported decision-making agreement
☐ Trust arrangement
☐ Authorized signer / joint account
☐ Geriatric care manager / case management services

☐ Determine whether limited guardianship / conservatorship is appropriate.

☐ Obtain medical / psychological evaluation report (Va. Code § 64.2-2005) by a licensed physician, psychologist, or other licensed professional skilled in assessment and treatment of the respondent's alleged condition; file it as a separate confidential addendum.

☐ Identify all family members, agents, and interested persons for notice (Va. Code § 64.2-2002).

☐ Prepare petition listing required content (Va. Code § 64.2-2001).

☐ File petition with circuit court; court appoints guardian ad litem (Va. Code § 64.2-2003).

☐ Confirm bond requirements (Va. Code § 64.2-2018).

☐ Prepare proposed order including the periodic-review hearing schedule required by Va. Code § 64.2-2009(A1).

PART 2 — VERIFIED PETITION FOR APPOINTMENT OF GUARDIAN AND / OR CONSERVATOR

VIRGINIA:

IN THE CIRCUIT COURT OF [__________________]
Case No. [__________]

PETITION FOR APPOINTMENT OF GUARDIAN AND / OR CONSERVATOR

COMES NOW Petitioner [______________________________], and pursuant to Va. Code § 64.2-2001, respectfully states:

1. Petitioner.
(a) Name: [______________________________]
(b) Post-office address: [______________________________]
(c) Telephone: [______________________________]
(d) Relationship to / interest in Respondent: [______________________________]

2. Respondent.
(a) Name: [______________________________]
(b) Date of birth / age: [__/__/____] / [____]
(c) Post-office address: [______________________________]
(d) Place of residence: [______________________________]
(e) Brief description of Respondent's education, family, employment, and prior occupation: [______________________________]

3. Nature and Degree of Alleged Incapacity (Va. Code § 64.2-2001(B)):
[______________________________]

4. Specific Areas of Protection and Assistance Requested. Petitioner requests authority to provide assistance with:
☐ Personal care, health, safety, support, therapeutic treatment
☐ Residence selection
☐ Medical decision-making
☐ Educational / vocational decisions
☐ Estate / financial affairs (conservatorship)
☐ Other: [____________________]

5. Type of Appointment Sought.
☐ Full guardian (person)
☐ Limited guardian — specific powers: [____________________]
☐ Full conservator (estate)
☐ Limited conservator — specific powers: [____________________]
☐ Temporary guardian / conservator (Va. Code § 64.2-2007)

6. Less Restrictive Alternatives Considered. Petitioner has considered alternatives to guardianship / conservatorship as required by Va. Code § 64.2-2007 and represents the following:
[______________________________]

7. Proposed Guardian / Conservator.
(a) Name: [______________________________]
(b) Address: [______________________________]
(c) Telephone: [______________________________]
(d) Relationship to Respondent: [______________________________]
(e) Qualifications: [______________________________]
(f) Statement that proposed guardian / conservator has not been convicted of a felony involving moral turpitude or barratry, fraud, or breach of fiduciary duty: [______________________________]

8. Estate of Respondent (Va. Code § 64.2-2001(B)(8)). General description and approximate value:
(a) Real estate: $[____________]
(b) Personal property: $[____________]
(c) Anticipated annual income (SSA, pension, etc.): $[____________]
(d) Anticipated annual expenses: $[____________]

9. Names, Post-Office Addresses, and Relationships of Spouse, Adult Children, Parents, and Adult Siblings; or if none, at least three adult relatives (Va. Code § 64.2-2001(B)(5)):

10. Existing Agents / Fiduciaries.
(a) Agent under power of attorney: [______________________________]
(b) Agent under advance directive: [______________________________]
(c) Trustee: [______________________________]
(d) Representative payee: [______________________________]

11. Educational, Habilitative, and Treatment Needs. [______________________________]

12. Request for Specific Powers and Authorities. [______________________________]

WHEREFORE, Petitioner prays that the Court:
(a) Appoint a guardian ad litem under Va. Code § 64.2-2003;
(b) Set the matter for hearing;
(c) Provide notice as required by Va. Code § 64.2-2002;
(d) After hearing, appoint Petitioner (or other suitable person) as [☐ guardian ☐ conservator ☐ both];
(e) Set bond under Va. Code § 64.2-2018;
(f) Schedule periodic review hearings under Va. Code § 64.2-2009(A1); and
(g) Grant such other relief as is just.

Dated: [__/__/____] Petitioner: [______________________________]
Counsel: [______________________________] VSB No.: [____________]

VERIFICATION: I, [________________], declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

[______________________________] Signature

PART 3 — NOTICE OF HEARING (Va. Code § 64.2-2002)

TO: [Name of Respondent] and all interested parties listed below

You are hereby notified that a Petition has been filed in the Circuit Court of [__________], Case No. [__________], requesting that the Court adjudicate [Name of Respondent] incapacitated and appoint a guardian and / or conservator.

A hearing has been set for [__/__/____] at [____] [☐ a.m. ☐ p.m.] in Courtroom [____] of the [__________] Circuit Court, located at [______________________________].

Required service:

• Personal service on Respondent at least seven days before the hearing.
• The Notice must inform Respondent in plain language of the nature of the proceeding, the rights at stake, the right to counsel, the right to a jury trial, and the right to be present.
• Notice on all persons identified in Paragraph 9 of the Petition.

RIGHTS OF RESPONDENT:

1. The right to be represented by counsel (the Court WILL appoint a guardian ad litem; you may also retain your own attorney).
2. The right to be present at the hearing.
3. The right to a jury trial.
4. The right to present evidence and cross-examine witnesses.
5. The right to compel attendance of witnesses.

Dated: [__/__/____] [______________________________]
Counsel for Petitioner / VSB No. [____________]

PART 4 — MEDICAL / PSYCHOLOGICAL EVALUATION REPORT (Va. Code § 64.2-2005)

To be prepared by a licensed physician, licensed clinical psychologist, or other licensed professional skilled in the assessment and treatment of the physical or mental conditions of the respondent.

EVALUATION REPORT OF RESPONDENT

1. Evaluator.
   (a) Name: [______________________________]
   (b) License number / specialty: [______________________________]
   (c) Address / phone: [______________________________]
   (d) Date(s) of evaluation: [__/__/____]

2. Description of Nature, Type, and Extent of Cognitive and Functional Limitations of Respondent: [______________________________]

3. Diagnosis, Prognosis, and Mental and Physical Condition. [______________________________]

4. Evaluation of Respondent's Ability to Learn Self-Care Skills, Adaptive Behavior, and Social Skills. [______________________________]

5. Prognosis for Improvement and Recommendation for Treatment / Habilitation Plan. [______________________________]

6. Date of Examination. [__/__/____]

7. List of Medications Currently Prescribed. [______________________________]

8. Opinion on Capacity in Specific Decision-Making Domains:

9. Recommendation Regarding Need for Guardian and / or Conservator. [______________________________]

10. Ability to Attend Hearing. [______________________________]

Signature of Evaluator: [______________________________] Date: [__/__/____]

PART 5 — GUARDIAN AD LITEM APPOINTMENT AND REPORT (Va. Code § 64.2-2003)

Upon the filing of every petition, the Court SHALL appoint a guardian ad litem ("GAL") to represent the interests of the Respondent.

Duties of GAL (Va. Code § 64.2-2003):

☐ Personally visit and interview the Respondent.
☐ Advise Respondent of rights (including right to counsel; if Respondent requests independent counsel, GAL must so inform the court).
☐ Investigate the petition, the medical evaluation, and any alternatives.
☐ Notify the Respondent of the right to a jury trial.
☐ Inspect documents and interview the petitioner, proposed guardian / conservator, family, and treating providers.
☐ Consider less-restrictive alternatives.
☐ File a written report with the Court at least five days before the hearing.
☐ Appear at the hearing.

The GAL's report shall address:
(1) Whether Respondent is incapacitated;
(2) Whether the appointment is needed;
(3) The propriety and suitability of the proposed guardian / conservator;
(4) Whether the petitioner has considered less-restrictive alternatives;
(5) Recommended powers and duties.

PART 6 — LESS-RESTRICTIVE ALTERNATIVE ANALYSIS (Va. Code § 64.2-2007)

The Court SHALL consider whether less-restrictive alternatives have been considered before ordering guardianship or conservatorship.

PART 7 — BOND AND QUALIFICATION (Va. Code § 64.2-2018)

After entry of the order of appointment, the appointee must qualify before the Clerk of the Circuit Court.

☐ Oath of office
☐ Surety bond — amount: $[____________]
☐ Surety required (unless waived); waiver basis: [____________________]
☐ Letters of Appointment / Letters of Qualification issued by Clerk

Bond is generally required for a conservator equal to the value of personal estate plus one year's anticipated income, unless waived or modified by the Court.

PART 8 — ORDER OF APPOINTMENT

VIRGINIA:

IN THE CIRCUIT COURT OF [__________________]
Case No. [__________]

THIS MATTER came before the Court upon the Petition of [Petitioner], the report of the guardian ad litem, the evaluation report under Va. Code § 64.2-2005, and the evidence presented; and the Court having found by CLEAR AND CONVINCING EVIDENCE that [Respondent] is an incapacitated person within the meaning of Va. Code § 64.2-2000, and that less-restrictive alternatives would not adequately meet Respondent's needs;

IT IS ORDERED, ADJUDGED, AND DECREED:

1. [Respondent] is adjudicated incapacitated.
2. [Name] is appointed [☐ guardian ☐ conservator ☐ both] of [Respondent], with the following powers and duties: [____________________].
3. The appointment is [☐ general / plenary ☐ limited as follows: ____________________].
4. Bond is set at $[____________] with [☐ surety required ☐ surety waived].
5. The first periodic review hearing is set for [__/__/____] (no later than one year after the initial appointment) under Va. Code § 64.2-2009(A1); subsequent review hearings shall occur no later than every three years unless the Court enters supported findings waiving or changing the schedule.
6. Guardian shall file reports under Va. Code § 64.2-2020 with the local department of social services for the jurisdiction where the incapacitated person resides.
7. Conservator shall file an inventory within four months and annual accounting under Va. Code § 64.2-2021 with the Commissioner of Accounts.
8. The following rights are removed from Respondent: [____________________].
9. The following rights are retained by Respondent: [____________________].

ENTERED this [____] day of [__________], 20[____].

[______________________________] Judge, Circuit Court of [__________]

PART 9 — LETTERS OF GUARDIANSHIP / CONSERVATORSHIP

Issued by the Clerk of the Circuit Court of [__________] upon qualification (oath + bond), pursuant to Order entered [__/__/____], certifying the authority of [Name] to act as [guardian / conservator] of [Respondent].

[______________________________] Clerk, Circuit Court

PART 10 — INITIAL INVENTORY (Conservator) AND ANNUAL REPORTS

Conservator's Inventory (Va. Code § 64.2-2021; due within four months of qualification, filed with Commissioner of Accounts):
☐ Real estate (FMV at appointment)
☐ Tangible personal property
☐ Bank, brokerage, retirement accounts
☐ Stocks, bonds, securities
☐ Debts owed to estate
☐ Income sources

Conservator's Annual Accounting (filed with Commissioner of Accounts):
☐ Beginning balance
☐ Receipts (itemized)
☐ Disbursements (itemized)
☐ Investment activity
☐ Ending balance
☐ Supporting vouchers

Guardian's Annual Report (Va. Code § 64.2-2020; filed with the local department of social services where the incapacitated person resides):
☐ Current address and living arrangement of incapacitated person
☐ Major medical and mental health treatment
☐ Major decisions made
☐ Number and nature of visits
☐ Opinion on continued need for guardianship
☐ Recommendation to modify or terminate

Periodic Review Hearing (schedule and procedure: Va. Code § 64.2-2009(A1)-(A2); required assessments: § 64.2-2009.1):
☐ First hearing within one year of appointment
☐ Subsequent hearings no later than every three years unless the court enters supported findings waiving or changing the schedule
☐ Initial review hearing may NOT be waived when the petitioner is a listed hospital, convalescent home, nursing facility, assisted living facility, similar institution, or a non-family health-care provider
☐ Review whether the fiduciary is fulfilling duties, whether the appointment remains necessary and properly scoped, and whether incapacity status has changed

SOURCES AND REFERENCES

• Va. Code Title 64.2, Chapter 20 — https://law.lis.virginia.gov/vacode/title64.2/chapter20/
• Virginia Department for Aging and Rehabilitative Services (DARS) — Adult Protective Services / Public Guardian and Conservator Program
• Commissioner of Accounts (county / city specific) — receives inventory and accountings
• Virginia State Bar — Guardianship and Conservatorship resources
• Va. Code § 64.2-2005 — evaluation report; § 64.2-2009(A1)-(A2) — periodic-review schedule and procedure; § 64.2-2009.1 — review assessments