Charleston Guardianship Lawyers

How Do I Establish Guardianship in West Virginia?

A guardian is a legal adult who takes responsibility for an individual who is incapable of making serious decisions for him or herself. Typically, guardians are appointed to children under the age of 18, though people may also act as guardians for adults with special needs or elderly individuals with mental problems. Guardianship may be established after a child’s parents die, or if they are no longer able to care for the child. If you are dealing with a guardianship issue, dispute, or simply wish to establish legal guardianship over a child you care for, our firm can help.

In West Virginia, guardianship can be appointed by the court or the individual’s parent. Usually, the court appoints guardianship over a child when his or her parents are deceased or incapable of providing the child with adequate care. This often happens in cases of domestic violence, abuse, or neglect.

Typically, the court prefers appointing family members as guardians, especially those who have a standing relationship with the ward. However, any adult could qualify for guardianship in West Virginia, pending court approval.

If you wish to file for guardianship, you must file a petition with your circuit court. The court will then begin an investigation. When the investigation is over, the hopeful guardian will testify in front of the court. If the court deems the guardianship to be in the best interest of the child, the guardianship will be granted.

To learn more about grandparents and guardianship rights read our blog today. Ready to get started? Call (304) 345-7250 to schedule a consultation with our Charleston guardianship attorney.

What Responsibility Does a Guardian Carry?

Guardians are responsible for making essential decisions on behalf of another person, their ward. The ward is usually a minor, a child under the age of 18. However, the ward might also be an adult who is incapable of making important decisions, usually becomes of some type of disability.

Guardians are responsible for several things, including the ward’s:

• Medical care
• Education
• Living situation
• Finances
• Daily necessities, including toys, food, clothing, etc.

Guardianship in West Virginia: Frequently Asked Questions

1. What is the difference between a guardian and a conservator?

In West Virginia, a guardian is appointed to handle the personal and medical affairs of a protected person, such as choosing where they live and their healthcare. A conservator, conversely, is responsible specifically for managing the protected person’s financial assets, income, and estate. While one person often serves in both roles, the legal duties for each remain distinct.

2. Who is considered a “protected person” under West Virginia law?

A protected person is an adult whom a circuit court has determined lacks the mental capacity to manage their own affairs due to impairment. This impairment may stem from mental illness, intellectual disability, physical illness, or advanced age. The court must find that the individual is unable to receive and evaluate information effectively or respond appropriately to their environment or events.

3. How do I start the process of becoming a guardian?

To begin, you must file a formal petition in the circuit court of the county where the individual resides. This filing requires a specific “Evaluation Report” completed by a licensed physician or psychologist. This medical professional must certify that the individual is incapacitated and requires a guardian. You must also provide notice of the proceeding to all of the respondent’s relatives.

4. What is the role of a Guardian Ad Litem (GAL)?

Once a petition is filed, the court appoints a Guardian Ad Litem, who is a licensed attorney. Their job is not to represent the petitioner or the respondent as a traditional lawyer would. Instead, the GAL conducts an independent investigation and interviews the involved parties. They then file a report with the court recommending what is in the respondent’s best interest.

5. Can I become a guardian for a minor child?

Yes, West Virginia distinguishes between adult guardianship and “infant guardianship.” This occurs when someone other than a parent seeks legal custody of a child under eighteen. These cases are usually handled in the Family Court or Circuit Court. A minor’s guardian assumes the rights and responsibilities of a parent, including providing for the child’s education, health, safety, and general well-being.

6. Are there specific training requirements for West Virginia guardians?

Yes. Once the court appoints you as a guardian or conservator, West Virginia law requires you to complete a mandatory training program. This educational tutorial must be finished within thirty days of your appointment. You must then file an affidavit with the court clerk certifying that you have completed the training. Failure to meet this requirement may result in your removal.

7. What are the primary responsibilities of an adult guardian?

The guardian’s main duty is to provide for the protected person’s support, care, health, and social interactions. This includes making decisions about medical treatment, residential placement, and daily care. You are also required to maintain regular contact with the protected person, visiting them at least once every six months to assess their current condition, needs, and any new opportunities.

8. Do guardians have to file regular reports with the court?

Yes, accountability is strictly enforced. Guardians must file an initial report within six months of appointment and then an annual report by December 31st each year. These reports must describe the protected person’s current mental and physical condition, their living arrangements, and the adequacy of the care they receive. These documents are filed with the county’s circuit court clerk.

9. Can a guardian be held personally liable for a ward’s actions?

Generally, a guardian is not held personally liable for the acts of the protected person or for their debts. You are not required to use your own money to support the ward. However, you can be held personally liable if you are negligent in your duties or if you breach your fiduciary duty, such as through self-dealing or financial mismanagement.

10. Can the guardianship be limited or is it always full?

West Virginia courts prefer the “least restrictive alternative.” This means the court may grant a “limited guardianship” where the protected person retains certain rights, such as the right to vote or marry. The court order will specifically list which powers the guardian holds and which rights the individual keeps. Full guardianship is only granted when the person is completely incapacitated.

11. Can a guardianship be ended if the person recovers?

Yes, a guardianship is not necessarily permanent. If the protected person regains their capacity, or if the circumstances that necessitated the guardianship change, a petition for termination can be filed. The court will then hold a hearing to review medical evidence. If the judge finds the individual is now capable of managing their own affairs, their rights are legally restored.

12. Who can serve as a guardian in West Virginia?

Any competent adult can petition to be a guardian. The court prioritizes individuals who have a significant relationship with the protected person. If no family member or friend is willing or able to serve, the court may appoint a public guardian or a professional agency. The judge must ultimately determine that the appointee is fit and capable of serving responsibly.

Contact Charleston Guardianship Attorneys Today

At Pence Law Firm PLLC our attorneys understand how complex family legal matters can be. Our Charleston guardianship attorneys have a proven track record of success in these and other family law matters. Whether you need help establishing guardianship, transferring guardianship, or dealing with some other type of family law dispute, we can help.