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Jenkins Fenstermaker, PLLC

325 Eighth Street

Huntington, WV 25701-2225

Phone (304) 523-2100

Toll Free (866) 617-4736

By Anna Melissa Price Of Jenkins Fenstermaker, PLLC on 11/22/2019
When to Apply for Guardianship in WV

When adult children, parents, or other loved ones become unable to make important decisions or care for themselves, the decision to pursue legal guardianship for adults can be very difficult. Adult guardianship can be restrictive to the rights of the protected person and places significant responsibilities on the appointed guardian. Understanding guardianship laws in West Virginia (WV) can help you decide if and when to apply for guardianship in WV.

How Do I Decide When to Apply for Guardianship?

The West Virginia Guardianship and Conservatorship Act sets forth the appropriate reasons to request guardianship, the requirements for filing for legal guardianship of adults, the rights and responsibilities of appointed guardians, and other related provisions. The Act specifies that, when possible, less restrictive alternatives than adult guardianship should be considered. 

An experienced WV guardianship attorney can assist you in evaluating estate planning, financial, and legal options that could be used in lieu of guardianship. If it is too late to implement these alternatives, the attorney can help you determine when to apply for standard guardianship or seek emergency guardianship and assist you with the legal process.

Reasons to Request Guardianship of an Adult in WV

An adult can become incapable of managing his or her own personal affairs and finances for a number of reasons. Whether your loved one is a young person with mental illness or disability, an elderly friend or relative with declining mental capacity, or another scenario, the state of WV requires that specific conditions are met for an individual to be deemed mentally incompetent and eligible for guardianship.

In WV, an individual who is eligible for guardianship is called a “protected person.” This terminology expresses the state’s desire to ensure that guardianship is intended to further the best interests of the incapacitated person. WV Code § 44A-1-4 defines a protected person as follows:

[A]n adult individual, eighteen years of age or older, who has been found by a court, because of mental impairment, to be unable to receive and evaluate information effectively or to respond to people, events, and environments to such an extent that the individual lacks the capacity: (A) To meet the essential requirements for his or her health, care, safety, habilitation, or therapeutic needs without the assistance or protection of a guardian; or (B) to manage property or financial affairs or to provide for his or her support or for the support of legal dependents without the assistance or protection of a conservator.

One of the less common reasons to request guardianship is in the case of a missing person. An individual can be deemed a protected person if he or she has been missing for more than six months and a court finds the decision is necessary to protect the person’s interests and assets. 

The Act further notes that poor judgment alone is not sufficient cause for a finding of mental incapacity or incompetence. If you believe a loved one requires immediate and temporary assistance managing his or her affairs but does not meet the qualifications for long-term guardianship, you can seek emergency guardianship by requesting a temporary protective order—commonly called a mental hygiene order—that freezes that individual’s financial accounts and assets.

Obtaining a Professional Evaluation

If you believe a loved one meets the requirements above, a WV guardianship attorney can assist you in taking the steps necessary to file a petition for adult guardianship. One of those steps is an evaluation by a licensed physician or psychologist that includes the following:

  • A description of the incapacity and specific limitations of the proposed protected person;

  • An evaluation of the individual’s mental and physical skills, current condition, and behavior;

  • Details of anticipated services that will be needed to maintain an appropriate standard of living;

  • A statement of the need for a guardian appointment, as well as the type and extent of guardianship or conservatorship recommended; and

  • The evaluator’s reasons for the opinions outlined above

When to Apply for Guardianship: Are You Prepared for the Responsibilities of a Guardian?

The process to obtain legal guardianship for adults in WV involves an evaluation of the proposed guardian’s capacity to fulfill the obligations of a legal guardian. In WV, the rights and responsibilities of a guardian or conservator can include the following:

  • Making decisions and arrangements for general care, health care and treatment, personal support, living arrangements, social well-being, and educational needs (if applicable);

  • Maintaining contact with the protected individual at least every six months;

  • Obtaining authorization for relocation and other personal or legal changes;

  • Encouraging self-sufficiency and exercising minimal authority when possible;

  • Acting in the best interest and considering the wishes of the protected person;

  • Filing reports in the court of jurisdiction as required by WV Code § 44A-3-2 and any applicable court orders;

  • Managing financial affairs; and

  • Informing relatives of death, funeral arrangements, hospitalization, or relocation

Do You Need Help Deciding When to Apply for Guardianship in WV?

There are many reasons to request guardianship and a lot of related considerations. If you need assistance deciding when to apply for guardianship, believe it is time to seek emergency guardianship, or want to learn more about becoming a legal guardian for adults in WV, Anna M. Price of Jenkins Fenstermaker, PLLC is a guardianship attorney who knows the applicable WV laws and legal processes. Contact Anna by phone at (866) 617-4736 or complete her online contact form to schedule a consultation.