West Virginia Adult Guardianship / Conservatorship Petition Packet

WEST VIRGINIA ADULT GUARDIANSHIP / CONSERVATORSHIP PETITION PACKET

Circuit Court Filing Packet — W. Va. Guardianship and Conservatorship Act

PART 1 — PRE-PETITION CHECKLIST

Petitioner / Counsel: [_________________________________________]
Alleged Protected Person (APP): [_________________________________________]
Date of intake: [__/__/____]

1.1 Standing — § 44A-2-1; § 44A-1-3

☐ Petitioner is APP themself, a person responsible for / providing care, a facility (hospital/nursing home), the nominated guardian/conservator, DHHR (Department of Human Services), or any other interested party
☐ APP is age 18 or over
☐ Venue confirmed — circuit court of county where APP resides OR where APP's facility is located
☐ Filing fee $110 (or in forma pauperis affidavit under W. Va. Code § 59-1-1)

1.2 Two-Prong Statutory Standard — § 44A-1-3

APP must, by reason of physical or mental incapacity, be unable to:

☐ Prong 1 (Guardian): Meet the essential requirements for health, care, safety, habilitation, or therapeutic needs without a guardian; AND/OR
☐ Prong 2 (Conservator): Manage property or financial affairs or provide for the support of legal dependents without a conservator

(Note: Mere "poor judgment" is statutorily insufficient.)

1.3 Less Restrictive Alternatives Considered

☐ Durable POA for finances (W. Va. Code § 39B-1-101 et seq. — Uniform POA Act)
☐ Medical POA / Living Will (W. Va. Code § 16-30-1 et seq. — Health Care Decisions Act)
☐ Health care surrogate (§ 16-30-8)
☐ Representative payee (SSA)
☐ VA fiduciary
☐ Joint account, ABLE account
☐ Trust (revocable / SNT)
☐ Adult Protective Services intervention (W. Va. Code § 9-6-1 et seq.)
☐ Supported decision-making

Explanation of insufficiency:
[____________________________________________________________]

1.4 Documents to Collect

☐ Physician's or psychologist's evaluation report (mandatory)
☐ Asset/debt inventory
☐ Income statement
☐ Existing POA, health care directive, will, trust
☐ Names/addresses of nearest known relatives
☐ Proof of completion of (or registration for) guardian education program — § 44A-1-10
☐ Filing fee $110 or fee waiver affidavit

1.5 Type of Proceeding

☐ Guardian only
☐ Conservator only
☐ Combined guardian and conservator
☐ Limited (specify powers)
☐ Unlimited / plenary
☐ Emergency / temporary — W. Va. Code § 44A-1-7

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

IN THE CIRCUIT COURT OF [______________] COUNTY, WEST VIRGINIA

Civil Action No.: [_______________________]

VERIFIED PETITION FOR APPOINTMENT OF [☐ GUARDIAN] [☐ CONSERVATOR] [☐ GUARDIAN AND CONSERVATOR]

COMES NOW Petitioner, [PETITIONER FULL NAME], pursuant to W. Va. Code §§ 44A-2-1 and 44A-2-2, and respectfully petitions this Court as follows:

2.1 Petitioner — § 44A-2-2

1. Name: [_________________________________________]
2. Address: [_________________________________________]
3. Telephone: [(___) ___-____]
4. Relationship to APP: [_________________________________________]
5. Attorney for Petitioner: [_________________________________________]
   WV Bar No.: [____________] Address: [_________________________________________]
   Telephone: [(___) ___-____]

2.2 Alleged Protected Person

6. Full legal name: [_________________________________________]
7. Date of birth: [__/__/____] Age: [____]
8. Address: [_________________________________________]
9. Current location (if in facility): [_________________________________________]

2.3 Nearest Known Living Relatives

2.4 Current Caregivers / Fiduciaries

(Copies of existing POAs, advance directives, etc., are attached as Exhibits.)

2.5 Ability to Attend Hearing — § 44A-2-5

☐ APP will attend the hearing in person.
☐ APP cannot attend because: [_________________________________________]

2.6 Extent of Guardianship/Conservatorship Requested — § 44A-2-10

Specific areas of protection or assistance requested:

☐ Health care decisions
☐ Residence/placement decisions
☐ Activities of daily living
☐ Management of finances
☐ Contracts/property
☐ Other: [____________________________________________________________]

Reasons: [____________________________________________________________]

2.7 Proposed Guardian / Conservator

7. Name: [_________________________________________]
8. Address: [_________________________________________]
9. Age: [____] Occupation: [_________________]
10. Criminal history: [_________________________________________]
11. Relationship to APP: [_________________________________________]
12. APP's nominee (if different): [_________________________________________]
13. Any current guardian/conservator acting for APP: [_________________________________________]

2.8 Conservatorship Allegations (if applicable)

14. Estimated value of APP's estate:

15. Monthly income (SSA, pension, wages): $[___________]
16. Reason conservator is needed: [_________________________________________]

2.9 Evaluation Report Attached — § 44A-2-2

Pursuant to W. Va. Code § 44A-2-2, the evaluation report of a licensed physician or psychologist documenting APP's condition is attached as Exhibit A to this Petition.

2.10 Prayer for Relief

WHEREFORE, Petitioner prays this Court:

A. Accept and file this Verified Petition with attached evaluation report;
B. Set this matter for hearing pursuant to W. Va. Code § 44A-2-7;
C. Appoint a guardian ad litem for APP pursuant to W. Va. Code § 44A-2-3;
D. Order an examination of APP by a physician or psychologist if not already submitted — § 44A-2-6;
E. Direct service of notice of hearing pursuant to § 44A-2-4;
F. After hearing, find APP a "protected person" by clear and convincing evidence and appoint [Petitioner / proposed guardian/conservator] as such;
G. Require bond from the conservator pursuant to § 44A-3-9;
H. Grant such other relief as is just and proper.

Respectfully submitted this [____] day of [______________], 20[____].

___________________________________
[PETITIONER SIGNATURE]
[PRINTED NAME]

___________________________________
[ATTORNEY FOR PETITIONER] (if any)
WV Bar No. [____________]

VERIFICATION

STATE OF WEST VIRGINIA )
COUNTY OF [______________] ) ss.

I, [PETITIONER NAME], being first duly sworn, state under penalty of perjury under the laws of the State of West Virginia that I have read the foregoing Verified Petition and that the facts stated are true and correct to the best of my knowledge, information, and belief.

___________________________________
[PETITIONER SIGNATURE]

Subscribed and sworn before me this [____] day of [______________], 20[____].

___________________________________
Notary Public
My commission expires: [__/__/____]

PART 3 — NOTICE TO ALLEGED PROTECTED PERSON (§§ 44A-2-4, 44A-2-5)

TO: [APP NAME], Alleged Protected Person

You are notified that a Verified Petition has been filed in the Circuit Court of [____________] County, West Virginia (Civil Action No. [_______________________]), asking the Court to find you a "protected person" and to appoint a guardian and/or conservator for you. This proceeding may significantly limit your legal rights.

YOUR STATUTORY RIGHTS — § 44A-2-5:

1. Right to counsel / guardian ad litem. The Court will appoint a guardian ad litem to represent your interests — § 44A-2-3. You may also retain your own attorney.
2. Right to be present at the hearing in person, unless the Court excuses your presence for good cause.
3. Right to present evidence and to compel witnesses to attend.
4. Right to cross-examine the petitioner, the evaluating physician/psychologist, and other witnesses.
5. Right to a jury trial (if requested).
6. Right to remain silent.

HEARING:

• Date: [__/__/____]
• Time: [____]:[____] [☐ a.m. ☐ p.m.]
• Judge: [______________________]
• Location: [______________________ County Courthouse, ______________________]

A copy of the Verified Petition and the evaluation report is served with this Notice. Notice must be served on you personally at least fourteen (14) days before the hearing.

Dated: [__/__/____]

___________________________________
[PETITIONER / COUNSEL SIGNATURE]

PART 4 — NOTICE TO INTERESTED PARTIES (§ 44A-2-4)

TO: [NAME OF INTERESTED PARTY]

You are notified that a Verified Petition has been filed in the Circuit Court of [____________] County, West Virginia, seeking the appointment of a guardian and/or conservator for [APP NAME].

Hearing: [__/__/____] at [____]:[____] [☐ a.m. ☐ p.m.], Judge [______________________].

You may attend the hearing and be heard. To object, file a written response with the Clerk of the Circuit Court prior to the hearing and serve a copy on Petitioner's counsel.

Notice must be served at least fourteen (14) days before the hearing.

Dated: [__/__/____]

___________________________________
[PETITIONER / COUNSEL SIGNATURE]

PART 5 — EVALUATION REPORT — PHYSICIAN OR PSYCHOLOGIST (§§ 44A-2-2, 44A-2-6)

EVALUATION REPORT OF ALLEGED PROTECTED PERSON

Re: [APP NAME] Civil Action No.: [_______________________]

I, [Dr. NAME], a licensed [☐ physician (M.D./D.O.) ☐ psychologist] in good standing in the State of West Virginia, License No. [____________], having personally examined the above-named individual, submit the following evaluation pursuant to W. Va. Code §§ 44A-2-2 and 44A-2-6:

5.1 Examination

• Date(s) of examination: [__/__/____]
• Location: [_________________________________________]
• Length of examination: [____] hours
• Records reviewed: [_________________________________________]

5.2 Diagnoses

• Primary diagnosis (ICD-10): [_________________________________________]
• Secondary diagnoses: [_________________________________________]

5.3 Statutory Findings (§ 44A-1-3)

a. Is APP unable, by reason of physical or mental incapacity, to meet the essential requirements for health, care, safety, habilitation, or therapeutic needs without a guardian?
☐ Yes — explain: [_________________________________________]
☐ No

b. Is APP unable to manage property or financial affairs or provide for the support of legal dependents without a conservator?
☐ Yes — explain: [_________________________________________]
☐ No

5.4 Functional Assessment

5.5 Prognosis

• ☐ Improving ☐ Stable ☐ Declining
• Expected duration of incapacity: [____________]
• Hearing attendance: ☐ Can attend ☐ Should be excused — reason: [____________]
• Recommendations regarding least restrictive supports: [_________________________________________]

5.6 Certification

I certify under penalty of perjury that the above is a true and accurate report based on my professional examination and judgment.

___________________________________
[Dr. NAME]
License No. [____________]
Date: [__/__/____]

PART 6 — ORDER APPOINTING GUARDIAN AD LITEM / COUNSEL (§ 44A-2-3)

The Court, upon filing of the Verified Petition, ORDERS:

[ATTORNEY NAME], WV Bar No. [____________], is appointed as guardian ad litem for [APP NAME] pursuant to W. Va. Code § 44A-2-3. The guardian ad litem shall:

a. Personally meet with and interview APP prior to the hearing;
b. Explain the proceedings, rights, and possible outcomes to APP;
c. Investigate the allegations of the Petition;
d. Review the evaluation report;
e. Interview the proposed guardian/conservator and material witnesses;
f. File a written report with the Court not less than five (5) days before the hearing, including findings, conclusions, and a recommendation on least restrictive options.

Date: [__/__/____]

___________________________________
Circuit Court Judge

PART 7 — LESS RESTRICTIVE ALTERNATIVE ANALYSIS

Statement: [_________________________________________]

___________________________________
[PETITIONER SIGNATURE]

PART 8 — BOND (§ 44A-3-9)

ORDER REQUIRING / WAIVING BOND

Pursuant to W. Va. Code § 44A-3-9, the Court ORDERS:

☐ Conservator shall post bond in the penal sum of $[___________], with [☐ corporate surety ☐ personal surety ☐ cash] satisfactory to the Court.
☐ Bond is waived for the following reason(s):
☐ Estate consists solely of restricted accounts requiring court order to withdraw
☐ All interested persons consent in writing
☐ Other good cause: [_________________________________________]

Bond shall be filed with the Clerk before Letters of Conservatorship issue.

Date: [__/__/____]

___________________________________
Circuit Court Judge

PART 9 — NOTICE OF HEARING

IN THE CIRCUIT COURT OF [______________] COUNTY, WEST VIRGINIA

Civil Action No.: [_______________________]
In re: Guardianship and/or Conservatorship of [APP NAME]

NOTICE IS HEREBY GIVEN that a hearing on the Verified Petition will be held:

• Date: [__/__/____]
• Time: [____]:[____] [☐ a.m. ☐ p.m.]
• Judge: [______________________]
• Location: [____________ County Courthouse, ____________]
• Method: ☐ In person ☐ Video

Notice must be served on APP personally and on interested parties at least fourteen (14) days before the hearing pursuant to W. Va. Code § 44A-2-4.

Dated: [__/__/____]

___________________________________
Clerk of the Circuit Court

PART 10 — FINAL ORDER OF APPOINTMENT AND LETTERS (§§ 44A-2-9, 44A-2-10, 44A-3-1)

ORDER OF APPOINTMENT — [☐ LIMITED ☐ UNLIMITED] GUARDIAN / CONSERVATOR

This matter came before the Court on [__/__/____]. The Court considered the Verified Petition and attached evaluation report, the guardian ad litem's report, additional physician/psychologist testimony if any, and the evidence presented at the hearing.

The Court FINDS by clear and convincing evidence that:

1. APP is a "protected person" as defined in W. Va. Code § 44A-1-3 in that, by reason of [physical / mental] incapacity, APP is unable to [meet essential requirements for health, care, safety / manage property or financial affairs] without [a guardian / a conservator];
2. Less restrictive alternatives are insufficient to meet APP's needs;
3. The proposed guardian/conservator is suitable to serve;
4. The least restrictive scope of authority necessary is [☐ limited ☐ unlimited].

IT IS ORDERED:

A. [NAME] is appointed [☐ Limited ☐ Unlimited] Guardian of [APP NAME].
B. [NAME] is appointed [☐ Limited ☐ Unlimited] Conservator of the Estate of [APP NAME].
C. Guardian's powers and duties under § 44A-3-1: [_________________________________________]
D. Conservator's powers: [_________________________________________]
E. Limitations / rights retained by APP: [_________________________________________]
F. Bond: ☐ $[___________] ☐ waived (per Part 8).
G. Letters of Guardianship and Letters of Conservatorship shall issue upon acceptance and posting of bond.
H. Conservator shall file an inventory within sixty (60) days of qualification per § 44A-3-10, and accountings periodically per § 44A-3-11.
I. Guardian shall file annual reports per § 44A-3-11.

Date: [__/__/____]

___________________________________
Circuit Court Judge

LETTERS OF GUARDIANSHIP

The Clerk of the Circuit Court of [____________] County, West Virginia, hereby certifies that [GUARDIAN NAME] has been duly appointed and qualified as Guardian of [APP NAME], a protected person, with the powers set forth in the Order of Appointment, and is authorized to act as such.

Dated: [__/__/____] Seal: [____]

___________________________________
Clerk of the Circuit Court

LETTERS OF CONSERVATORSHIP

The Clerk of the Circuit Court of [____________] County, West Virginia, hereby certifies that [CONSERVATOR NAME] has been duly appointed and qualified as Conservator of the Estate of [APP NAME], having posted bond in the amount of $[___________] (or bond waived), and is authorized to act as such.

Dated: [__/__/____] Seal: [____]

___________________________________
Clerk of the Circuit Court

PART 11 — INITIAL INVENTORY & ANNUAL REPORT/ACCOUNTING REFERENCE (§§ 44A-3-10, 44A-3-11)

11.1 Initial Inventory (Conservator) — within 60 days of qualification

11.2 Reporting — § 44A-3-11

• Guardian's annual report: APP's current residence, mental and physical condition, services provided, contact summary, recommendation on continued need.
• Conservator's accounting: receipts, disbursements, balances; supported by financial statements; reviewed multiannually by fiduciary commissioner or designated court reviewer under § 44A-2-1(f).
• Both filed with the Circuit Clerk and served on APP, the GAL, and interested persons.

11.3 Education Requirement — § 44A-1-10

Guardians and conservators must complete the education program. The WV Supreme Court of Appeals administers the program. Failure to complete may be grounds for removal.

11.4 Recordkeeping

☐ Separate fiduciary account titled "[NAME], Conservator for [APP NAME]"
☐ No commingling
☐ Retain receipts/statements 7 years
☐ Court approval required for sale of real estate, distributions outside ordinary maintenance, self-dealing

SOURCES AND REFERENCES

• W. Va. Code Chapter 44A — West Virginia Guardianship and Conservatorship Act: https://code.wvlegislature.gov/44A/
• WV Judiciary Forms — Form GC01 Petition: https://www.courtswv.gov/
• Legal Aid of WV — Adult Guardianship/Conservatorship Guide: https://legalaidwv.org/
• W. Va. Code § 59-1-1 et seq. (fee waiver / in forma pauperis)
• Enforcement of Guardianship and Conservatorship Act Fund (special revenue, administered by WV Supreme Court of Appeals)

END OF WEST VIRGINIA ADULT GUARDIANSHIP / CONSERVATORSHIP PETITION PACKET