The law in the United States is often crafted around protecting the interests of those who cannot protect themselves. The West Virginia Guardianship and Conservatorship Act addresses just such a person—a "protected person" who cannot legally take care of him- or herself and who may need the assistance of an appointed guardian for personal care and concerns or the assistance of a conservator for financial decisions.
Investigating the options, however, can be daunting. Those seeking to help a loved one incapable of tending to his or her own self-care or matters often have questions about what kind of guardian is needed, what forms to fill out, what court makes guardianship decisions, and what kind of qualifications a guardian needs to have. A West Virginia guardianship lawyer knows the ins and outs, of course, but if you find yourself needing to investigate the options for caring for an adult in need of assistance, it is helpful for you to have a general understanding of adult guardianship and conservatorship, too. Continue reading below to find out more.
Adult Guardianship Basics and Procedures
You may be in a situation where you are tasked with being a guardian to an aging parent who no longer has the mental capacity to care for him- or herself. Perhaps you have a sibling or other close relative who has reached the age of adulthood but who does not have the ability, for one reason or another, to make the decisions necessary for day-to-day living. Maybe you have always known that you would be a guardian someday, but now you are wondering how to go about it now that the situation has presented itself.
Types of Adult Guardianship in West Virginia
No two protected persons are completely alike, and their respective guardians are not completely alike either. Every potential guardianship situation requires careful and personalized planning, and a guardianship needs to be tailored to meet the specific needs of the situation.
There are several standard types of adult guardianships. Sometimes, a guardian may serve in more than one of these roles during the lifetime of a guardianship:
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Full guardianship with personal and financial powers;
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Guardianship of the person;
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Guardianship of the estate, also called conservatorship;
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Limited guardianship or conservatorship; and
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Interim or temporary guardianship
West Virginia Adult Guardianship Procedure: How Does a Guardian Know What to Do?
Everything a guardian needs to know to get started is covered in the West Virginia Guardian and Conservator Handbook publication, accessible online. The person seeking guardianship initiates the process by filing a petition to establish guardianship in the county where the person to be protected resides. The court will set the matter for hearing to determine whether to grant the petition. Once appointed, the guardian must file reports with the court, semi-annually at first and then annually. The items to be included in the reports are set by statute.
Even though guardians are the ones who are supposed to know where and what to file in order to help a protected person, the process can be overwhelming for guardians who have not done this frequently or, in many cases, who have never been a guardian before. The West Virginia judiciary alleviates some of the pressure by providing an online training portal. Guardian training in West Virginia is mandatory, absent a waiver, before the court will name you as a guardian.
The West Virginia judiciary also provides an online resource containing guardianship forms with links to the various forms and even a chart showing who is responsible for signing each form.
Alternatives to Guardianship
There are also recommended alternatives to guardianship, many of which are encouraged by the West Virginia Department of Health and Human Resources and the National Council on Disability:
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Supported decision-making (a team-based decision-making approach);
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HIPAA permissions; or
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Various power of attorney arrangements
When Guardianship Proceedings Are Filed in Different States
For a guardian or conservator to be appointed, a petition is filed in the circuit court in the county where the alleged protected person lives or in the county where the protected person has been admitted to a health care or correctional facility. But what happens when two purported guardians both file petitions in different states? This can happen, for example, when an elderly loved one spends extended “visits” with family members in different states but does not maintain a separate residence.
To address the jurisdictional problems of two different courts overseeing guardianships of the same person, West Virginia joins the majority of other states in adopting the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act which provides guidance for resolving multi-state jurisdictional disputes. This Act sets out the procedures the courts involved will use in determining which court has priority and jurisdiction to proceed regarding the guardianship petition.
West Virginia Adult Guardianship Procedure: Stay Informed
Being responsible for another human being is the kind of job in which you cannot make mistakes. Protections are built into the system to require, for instance, regular reports from guardian, but the best protection you can give yourself and the person you protect is knowledge. West Virginia guardianship lawyer Anna M. Price of Jenkins Fenstermaker, PLLC is here to walk you through every step of adult guardianship proceedings. To learn more about the process or guardianships in general, contact Anna by calling (304) 523-2100 locally or (866) 617-4736 toll-free or by completing Anna’s online contact form.