West Virginia Guardianship Process
Guardianship is a significant legal matter in the State of West Virginia and its counties because it serves to protect the legal interests of individuals who may be unable to do so for themselves. These individuals may be children or adults who are mentally incompetent, physically incompetent, or both. Individuals who petition for guardianship of these incompetent individuals do so in the capacity of a guardian to act on their behalf and, even more importantly, protect their rights.
It is incredibly important for individuals in the State of West Virginia to understand the process of guardianship so that they are prepared to navigate this territory to best serve the interests of those who are incompetent to do so for themselves. Questions about who will care for an individual who becomes incompetent and their property or assets, who will make financial decisions for them, and whether or not a guardian should be appointed are all crucial to determining the next steps for them or their family. Guardianship in the State of West Virginia is not limited to those that are mentally or physically incompetent and may also include instances of individuals with long-term medical conditions such as brain injuries or disorders like Alzheimer’s that impact their ability to make decisions for themselves. It is important to remember that guardianship does not mean that the individual’s rights are involuntarily taken from them; on the contrary , given the circumstances of their incompetence, they may actually welcome the right help to assist them. Therefore, understanding the concept of guardianship is incredible beneficial for those pursuing or facing guardianship issues.
The process for the appointment of a guardian by a Circuit Court judge in the State of West Virginia begins with the filing of a petition for guardianship. There are numerous grounds for why the appointment of a guardian or limited guardian is necessary, including: persons with mental disabilities, adult persons subject to guardianship under the provisions of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, persons subject to limited guardianship, minors, and individuals with physical disabilities. Although these various types of individuals are not necessarily limited to the list above, this information will serve as the basis for why guardianship forms may be needed in their situation.
Given all of the complexity that can arise in guardianship proceedings, it is recommended that individuals seeking guardianship of another individual utilize their legal counsel as a resource to ensure they appropriately understand and navigate the different legal documents required to be filed in a guardian proceeding.
Types of Guardianship Forms in West Virginia
There are a number of types of guardianship forms for West Virginia clients depending on the context in which the guardianship will be established. In the context of minors, there are forms for parents establishing guardianship of a child in foreign country (WV Delegation of Parental Power as Guardian) and for grandparents seeking guardianship over a child (WV Petition for Appointment of Successor Guardian of Minor). As already discussed above, in the context of an adult seeking a guardian to be appointed, there are many forms for this process, but the most commonly used forms are the WV Petition to Appoint Guardian of Respondent and the accompanying WV Order Appointing Guardian. There is a very important exception to the West Virginia guardianship forms for adults appointed by the West Virginia Department of Health and Human Services. The West Virginia DHHR has its own set up guardianship forms that they use.
Where to Find West Virginia Guardianship Forms
West Virginia courts use several different forms that require the guardian to provide information about the protected person’s living situation. These forms include any of the following:
The Office of the Secretary of State has free, downloadable versions of several West Virginia uniform guardianship forms, including forms vital to the guardianship process. To access these forms, visit their online forms site image.
Please note that while the state provides some forms, local forms are typically produced by local circuit courts and vary from county to county. For example, few large counties have the forms created by the state, while smaller counties have fewer forms designed for guardianship cases.
House Bill 4195, originally introduced in 2014, allows West Virginia’s circuit courts to create their own standardized forms for case filings in certain civil and criminal matters. The goal is to help clarify, simplify, and standardize the somewhat confusing language and processes currently used in the state’s court system. The bill was sent to the Committee on the Judiciary where it remains.
While West Virginia does not currently provide unified guardianship forms, many courts in large counties provide a Welcome Packet with information concerning obtaining a guardianship. It is advisable to check with the circuit court in your county for this information.
Local probate court offices have the power to admit and appoint guardians in certain situations. Any such local court office may have local forms for obtaining guardianship, including where to file, court fees, and when to return to court. Also, many local courts provide fee waivers for guardianship filing fees.
If you plan to use a guardianship petition form from another state, you should be aware that most states’ guardianship forms are slightly different. Even though the basic information needed by each state is pretty much identical, some information requirements will vary in each state. Additionally, some local courts have specific local forms that they require.
You can download and complete these forms on your computer using software for creating PDF documents, though this requires adding your information to a digital copy of the form and printing out the completed form. There is no specific form filing system in West Virginia, so once you download the appropriate form(s), you can print them and file them with the appropriate circuit court.
How to Fill Out the West Virginia Guardianship Forms
A missing piece of the puzzle is the Guardianship forms. People that have filed a Petition for Guardianship on their own figure out pretty quickly that they really have no idea how to fill the forms out. While I will be available for a consult with any person who wants, it is not fair to charge them for something that they should be able to do themselves. Here, I will walk you through the forms and I will also explain why exactly I will not do Guardianship for a person on their behalf.
The forms themselves are pretty straight forward. There is a section that says "In the Circuit Court of ___________ County West Virginia." In that blank, you put the name of the county where the petitioner resides, NOT the county where the Respondent resides. If your parent lives in Cabell County, but you live in Wayne County, you would file the Petition in Cabell County.
You will then write in the name of the Petitioner. You will be the person asking the Judge to appoint you as Guardian of your Mother or Father. After that, you will write in the Respondent’s name. That is going to be your Father or Mother. That is the person who has not been making good decisions for themselves.
The first sentence of the Petition will say, "The Petitioner(s) ask the Court for an Order awarding Petitioner(s) the protection and/or surrogate decision making for Respondent(s) who is/are unable to make decisions about his/her personal care and/or financial affairs and for such other and further relief as the Court deems just and proper."
Then you will write in your Mother or Father’s date of birth. After that, you will write in your Mother or Father’s Social Security Number. After that, you will write in the Residence Address of your Mother or Father. The residence address is where your Mother or Father actually lives, not where they used to live.
Next, you will write in your address as the Petitioner. The address where you petition is where the petition gets filed.
Where it says, "Please explain" you will write in what exactly is the problem. The problem could be as simple as your Father is 92 years old, without assets, and needs someone to pay his bills and help him move into a nursing home. You will definitely need to attach a copy of the Durable Power of Attorney to the Petition. There will be no other explanation for the Judge then. The entire reason for the Guardianship is that you cannot get someone to do what they need to do. You are petitioning the Court to appoint you as Guardian so that you can make the decisions that your Father or Mother can no longer make. It really is not any more complicated than that.
At the bottom of the petition, you will be certifying that the information that you provided in the petition is correct to your knowledge, under oath. That means that if you lie on the petition, you owe your Mother or Father money. You owe them the cost of the Guardianship suit. You owe them money for fraud.
The general form will be as follows:
IN THE CIRCUIT COURT OF _______ COUNTY WEST VIRGINIA
PETITIONER(S): CHRISTI LACKEY
VS. CASE NO.:
RESPONDENT(S): ELIZA LACKEY
PETITION FOR APPOINTMENT OF GUARDIAN
Petitioner(s) ask the Court for an Order awarding Petitioner(s) the protection and/or surrogate decision making for Respondent(s) who is/are unable to make decisions about his/her personal care and/or financial affairs and for such other and further relief as the Court deems just and proper. Please explain: My Mother, Eliza Lackey is 91 years old. She does not remember how to pay her bills and she cannot live at home anymore. She does not know how to prepare food for herself and is unable to go out shopping. She needs someone to take care of her affairs and to pay her bills and manage her money. Attached please find my Mother’s Durable Power of Attorney.
Requirements and Procedures for Obtaining a West Virginia Guardianship
All forms filed in the West Virginia county courts must meet the jurisdictional requirements of the West Virginia General District Court Rules. This includes the legal forms required in guardianship proceedings. A petition must be filed with the circuit court in the county where the incapacitated person resides or has resided within the 60 days preceding the filing of the petition.
The petition must be accompanied by a summons directing the ward to appear. The summons must include the time and place of the hearing. It is vital, too, that the petition be served upon any nominated guardian and to anyone else who has applied to be named as a guardian within the 60 days prior to the filing of the petition.
A filing fee is typically charged . This is approximately $80 in most counties. The petition is filed along with the return on service. In some West Virginia counties, a report from a physician is also filed if the proposed guardianship is for financial matters. In most cases, there is a hearing on the petition, followed by an order issued by the judge. It is also possible for an adjudication to be made without a hearing. This will only occur, however, where a lawyer, either for the ward or the public is present at the hearing. The clerk’s office will then prepare a Certified Order Establishing Guardianship. The order specifies the powers of the guardian, and typically a bond must be posted as well, unless this requirement is waived, provided the court permits this.
Frequently Asked Questions Regarding Guardianship
Frequently Asked Questions About West Virginia Guardianship
We have tried to provide some basic information on guardianship in the article above, but the following questions are also common. Hopefully they will be helpful.
My spouse has dementia. Should I get a power of attorney for financial matters and a medical (or health care) power of attorney? You can do both of those, but there is still the possibility you may need a guardian. If your spouse’s condition progresses to the point that he or she cannot handle their own affairs, neither a financial power of attorney nor a medical power of attorney is sufficient to appoint someone to make those decisions when he or she is incapacitated. So if your spouse does not have a terminal condition – meaning that his or her mental decline will eventually result in death – then you may want to consider guardianship now that is widely recognized as a way to deal with that situation, rather than rely on a power of attorney and risk needing a guardian later.
Can I have someone declared to be my guardian if I have been diagnosed with a terminal illness? Yes. If you have a terminal condition, and the disease is by definition fatal, then there is merit to seeking a guardian already. That will allow someone to handle your financial affairs and make medical decisions on your behalf since you will soon lose the ability to do so. A power of attorney is no longer sufficient, because it will become effective and allow your agent to act on your behalf once you are incapacitated. It can be difficult to obtain a determination of capacity and then act on that capacity, so a guardian is something you should carefully consider.
Resources and Help in West Virginia Guardianship Cases
West Virginia guardianship cases can be stressful and isolating, however, throughout the state, there are organizations, legal aid services, and community groups that can support individuals as they try to better understand the guardianship process and their own personal situations. Organizations like the West Virginia Supreme Court of Appeals and West Virginia Advocates, for example, provide a wealth of information on guardianship forms in West Virginia so that you can access the information you need directly from home. In addition to these resources, law firms and legal services organizations are often available to provide consultations for no charge or at low rates for those who may need assistance. Taking advantage of these resources will better enable individuals to prepare for their guardianship cases. Observe how other individuals have handled the guardianship process , and undergo the situation with confidence knowing that you have adequately prepared yourself to do so. In consulting with an attorney, you will be able to learn about the importance of each guardianship form and the potential consequences that may arise if those forms are not completed correctly. With this knowledge, you may avoid unnecessary and costly mistakes that could delay the guardianship process or close a window for contesting a guardianship altogether. Don’t let the intimidating process of guardianship hold you back — take advantage of the organizations and legal services in your area and move forward with your case with the information you need.