Procedures and Forms Once it is believed that the individual lacks capacity, “that the individual displays poor judgment alone,”[10] and that there is no other less restrictive alternatives available, guardianship and conservatorship should be considered. In addition, the petition for guardianship should reference and abide by the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act adopted by the Commonwealth of Virginia July 1, 2011. The Act can be found under Va. Code Ann. §37.2-1031 et seq. A copy of the statutes[11] is included at the end as Attachment B. The Act provides mechanisms for resolving increasingly frequent multi-state jurisdictional disputes arising in adult guardianship and conservatorship litigation. Before the Act, the guardian and conservator had to restart the entire legal procedure in the new state of residence. The goal of the Act is to ensure that only one state has jurisdiction at any one time to appoint a guardian to make decisions regarding the person of an incapacitated adult or a conservator to manage the property. It also seeks to save time and costs while protecting incapacitated adults and their property from abuse. 1.) Doctor’s Evaluation In order to start the proceedings, the practitioner should ensure that the respondent will qualify as an incapacitated individual. The first step is to obtain a doctor’s evaluation report that will be attached to the petition. Va. Code Ann. §37.2-1005 provides that the report needs to be filed within a reasonable time prior to the hearing. The report shall be prepared by “one or more licensed physicians or psychologists or licensed professionals skilled in the assessment and treatment of the physical or mental condition of the respondent.” The report shall describe the nature, type, and extent of the respondent’s incapacity. It shall also include an evaluation of the respondent’s ability to learn self-care skills, adaptive behavior, and social skills, as well as a prognosis for improvement. 2.) Content of the Petition Va. Code Ann. §37.2-1002 lists the requirements for the petition that should be followed accordingly. Although the respondent’s name, date of birth, place of residence or location, post office address, and social security number shall be mentioned in the petition, the social security number shall be provided under seal, as a private addendum. At least three relatives shall be notified of the petition and the petition shall include their names and addresses. The petition shall explain which kind of guardianship and conservatorship is sought and the nature and extent of the “Respondent’s alleged incapacity.” In addition, the petition should include a declaration that the Commonwealth of Virginia is the home state[12] according to the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act meaning that the respondent has been physically present for at least six consecutive months immediately before the filing of this petition, that on the date of the petition the Commonwealth is the only significant-connection state[13], and that the petitioner is not aware of any other significant-connection state, any other guardianship proceeding pending, or any objection to the court’s jurisdiction filed by a person required to be notified on the proceeding. VA. Code Ann. §37.2-1001 provides that a petition can be filed as early as six months prior to the 18th birthday of the incapacitated individual. This is to prevent a gap between a parent’s natural guardianship and the official guardianship at the reach of adulthood. | 3.) Guardian Ad Litem The petition should include the request for the appointment of a Guardian ad litem[14] (“GAL”). The duties and role of the Guardian ad litem are described under Va. Code Ann. §37.2-1003. The role of the GAL is to provide independent recommendations to the court about the respondent’s best interests. The GAL may conduct interviews and investigations, make reports to the court, and participate in court hearings or mediation sessions. To become a GAL for adults, the candidate needs to be an active member in good standing of the Virginia State Bar, attend 6 hours of continuing education for GAL, and demonstrate familiarity with the court system and a general background in guardianship law by completion of one of the following in the two-year period prior to seeking initial qualification as GAL: (1) shadowing a GAL in two cases, or (2) serving as a GAL for an incapacitated person in two cases; or (3) serving as counsel for the petitioner in two cases involving an incapacitated person in the circuit court, or (4) being appointed by the circuit court as a guardian or conservator for an incapacitated person in two cases. The GAL will personally visit the Respondent, advise the respondent of his or her rights, and investigate the petition and the supporting evidence. The GAL may request additional medical, neurological or psychological evaluation of the Respondent. The GAL investigation includes reviewing medical records and interviewing principals: respondent, petitioner, family members, attending physician or clinical psychologist, and other health care providers. The GAL will personally appear at all stages of the proceedings and file a report. According to Va. Code Ann. §37.2-1003 (C) the report shall address the following concerns: (i) whether the court has jurisdiction; (ii) whether or not a guardian or conservator is needed; (iii) the extent of the duties and powers of the guardian or conservator, such as personal supervision, financial management, or medical consent only; (iv) the propriety and suitability of the person selected as guardian or conservator, after consideration of geographic location, familial or other relationship with the respondent, ability to carry out the powers and duties of the office, commitment to promoting the respondent's welfare, any potential conflicts of interests, wishes of the respondent, and recommendations of relatives; (v) a recommendation as to the amount of surety on the conservator's bond, if any; and (vi) consideration of proper residential placement of the respondent. 4.) Service of the Respondent The GAL shall personally serve the respondent with notice, a copy of the petition and a copy of the order appointing the GAL. The notice of hearing served to the Respondent shall inform of the date, time and location for the hearing. This notice cannot be waived. This notice[15] “shall include a brief statement in at least 14-point type of the purpose of the proceedings and shall inform the respondent of the right to be represented by counsel pursuant to § 37.2-1006 and to a hearing pursuant to § 37.2-1007.” The notice shall also include the following statement in conspicuous, bold print. WARNING AT THE HEARING YOU MAY LOSE MANY OF YOUR RIGHTS. A GUARDIAN MAY BE APPOINTED TO MAKE PERSONAL DECISIONS FOR YOU. A CONSERVATOR MAY BE APPOINTED TO MAKE DECISIONS CONCERNING YOUR PROPERTY AND FINANCES. THE APPOINTMENT MAY AFFECT CONTROL OF HOW YOU SPEND YOUR MONEY, HOW YOUR PROPERTY IS MANAGED AND CONTROLLED, WHO MAKES YOUR MEDICAL DECISIONS, WHERE YOU LIVE, WHETHER YOU ARE ALLOWED TO VOTE, AND OTHER IMPORTANT RIGHTS. 5.) Guardianship contested by the Respondent In certain cases, the respondent will contest the guardianship and request to be represented by Counsel. If the respondent cannot find a counsel then the GAL will appoint a counsel for the respondent. It is recommended to make a separate motion, by agreement of counsel for Petitioner and other interested parties, or by reference in the Report. The counsel of the respondent plays a particular role. According to Kevin B. Rack[16], Esq., the role of the counsel is probably not to challenge each element of the petition. Rule 1.14 provides a different duty for a counsel when representing a person with diminished capacity. |