Sometimes, family members may have an issue with the person(s) appointed as agent under a general durable power of attorney or advance medical directive, or a guardian or conservator the court has appointed. Under Virginia law, these family members or other interested parties can file guardianship case to request that someone else be appointed as a fiduciary (decision-maker) for their loved one or to remove a guardian and nominate a new guardian.
For guardianship disputes in Central Virginia, contact the Commonwealth Life and Legacy Counsel law firm in or near Zion Crossrads, Virginia, at 434-589-2958 or in or near Powhatan at 804-598-1304 to schedule a free consultation.
What Is a Guardianship and Conservatorship in Virginia?
Virginia has different forms of guardianship, including guardianship for a minor and guardianship for an incapacitated adult. These different forms of guardianship each have their own legal purpose.
- Guardianship of a minor. The person under guardianship (“ward”), is under 18 years of age and unmarried. The guardian effectively has all the powers of a parent and can decide where the child attends school, resides, and other important decisions. Our firm only handles adult guardianships or guardianships for a minor child with special needs who is about to turn eighteen (18) years old.
- Guardianship of an incapacitated adult. An incapacitated adult is one who, because of personal injury or incapacitation, is not capable of evaluating information effectively to make important decisions for themselves. A guardian may have either limited guardianship or full guardianship.
The law also distinguishes guardianship of the person and guardianship of the estate, as follows:
- Guardianship of the person. A guardian of the person manages important day-to-day and lifestyle decisions for a ward, including healthcare decisions, living arrangements, and basic daily activities.
- Guardianship of the estate (conservatorship). A conservator is a person who manages the incapacitated persons finances to pay for continued care for the incapacitated person.
How Does a Person Nominate a Guardian in Their Estate Plans?
If you have minor children and worry who will care for them if you pass away before they turn 18, you can name a guardian in your estate plans in your will. You may also name a guardian for yourself in your will if you become incapacitated in the future.
How To Dispute a Guardianship Appointment in Virginia
The court determines its best choice for a guardian after evaluating information about the relationship between the guardian nominated and the incapacitated person (also known as the “ward”). The court will always choose a person it believes will represent the best interests of the ward and their estate.
When filing a contest to a guardianship appointment, you are challenging a court order. You may find grounds for your complaint with guardianship eligibility, in the testamentary appointment by a decedent, or because the court only appointed the person as guardian of either the estate or the person, but not both.
The grounds for filing a contested guardianship include:
- Breach of fiduciary duty
- Abuse of the power of a guardian
- Incapacity or unsuitability of guardian
Contact a Guardianship Dispute Attorney in Central Virginia
At The Commonwealth Life and Legacy Counsel, we understand the law surrounding guardianship disputes and can help family members and guardians file or defend against complaints. Call us at the Commonwealth Life and Legacy Counsel in or near Zion Crossroads, Virginia, at 434-589-2958 or in or near Powhatan at 804-598-1304, or fill out the contact form to schedule your free consultation.