What You Need to Know About Legal Guardianship in WV
Legal guardianship is a powerful legal arrangement giving one individual authority over another’s health care and financial decision-making. While there are many aspects of legal guardianship, both practical and legal, that are rather straightforward, others can be a bit more complex and challenging for a general audience to understand and navigate.
In West Virginia, a legal guardianship is a legal relationship in which the circuit court designates an individual as a guardian over another person. The circuit court judge determines the responsibilities of the guardian and sometimes appoints additional advisors to assist the guardian in fulfilling their duties.
A West Virginia legal guardianship takes effect once all required paperwork is signed, witnesses, and notarized. After it is signed , the legal guardianship does not go into effect until there is also an approval by a judge with jurisdiction over the matter. Once the circuit court signs a court order recognizing the legal guardianship, the legal guardianship goes into effect.
Outside of entering into a legal guardianship, three other situations can lead to legal guardianship, for which the petition needs to be submitted to the circuit court:
- when a minor reaches the age of 18 years, a parent or custodian should obtain documentation to terminate the legal guardianship.
- when a minor gets married, the court can appoint a third-party conservator.
- if a co-owner of a property gets a divorce, a legal guardianship will likely be needed.
For those wishing to investigate obtaining legal guardianship in West Virginia, it is a good idea to hire an experienced and local lawyer, as a state-licensed attorney will have expertise in the laws and procedures pertaining to guardianship in West Virginia.
Who Can Become a Guardian?
Individuals seeking to become a legal guardian for a person in West Virginia are generally required to be at least 18 years of age. However, courts have the discretion to appoint guardians who are under this age. Additionally, any individual who has been convicted of misconduct, has committed abuse or violent conduct, or has been diagnosed with a communicable disease is ineligible to serve as guardian. This rule is intended to protect the health and well-being of the proposed ward, but it can potentially exclude otherwise eligible individuals.
In some cases, the proposed ward may be a family member of the prospective guardian or is a close friend. In such situations, the court may appoint the person as guardian by waiver of a criminal background check. However, even when the court may waive this requirement, the prospective guardian must express their willingness to act in the capacity of the guardian, must not be subject to any criminal history that poses a potential threat to the proposed ward, and must be in good standing and have a positive reputation in the community where they may reside.
Types of Guardianships
Types of Guardianship
West Virginia has three types of guardianship: temporary, general (permanent), and standby.
Temporary Guardianship. A temporary guardian assumes only those powers specifically granted to him or her by the court if there is an emergency, disaster, or other condition that poses an immediate threat to the health, safety, or welfare of the protected person. A temporary guardian’s powers are terminated at the end of the period as set forth in their order, and they cannot be renewed. The guardianship is limited, and the judge may limit the duration and scope. This type of guardianship is most commonly used for a very short period of time until a general (permanent) guardianship can be established. The most common time period for a temporary guardianship is 60 days.
General Guardianship. A general or permanent guardianship continues until the end of the protected person’s life or until the protected person would be competent to handle their own affairs, either by reason of attaining the age of majority, by having been found competent by the court, or by being restored to the competence of the extent ordered by the court. By statute, persons convicted of certain felonies may have their voting rights removed and be declared incompetent. However, such a person remains eligible to have a general guardian appointed and have a guardian represent them for medical and legal purposes. General guardianship terminates only upon such time as the protected person can make decisions regarding their affairs or by death.
How a Court Establishes Guardianship
The path to establishing a legal guardianship in West Virginia typically involves several steps: Filing a petition. The process starts with filing a petition with the circuit court in the county where your child or parent lives. You’ll be required to pay a fee and provide documentation that supports the decision to file. Gathering the necessary documents. The legal documents that a parent or caregiver will need to have in order to file for guardianship include: After filing, you can expect to receive a date from the court at which the lawsuit proceedings will begin. Having the relevant parties served. The petition for guardianship needs to be served on the adult in need of a guardian and his or her spouse — along with the next of kin, if they are living. If they live out of state, they may be served via registered mail or publication in the newspaper in the county where the adult lives. Obtaining a physician’s letter of incapacity. In the context of guardianship proceedings, letters from physicians certify the mental competency (or lack thereof) of the person to be appointed to the position. The appropriate physician must examine the person at their residence, staff offices or physicians’ offices within a specific number of days of the filing of the petition, and issue a letter attesting to the guardianship. A hearing will occur in the next five to 21 days after the petition is filed. Once a hearing is scheduled, it’s wise to ask the judge if a guardian ad litem will be appointed to represent the person to be appointed as guardian. This can ensure neutrality in the proceedings. Avoid treating the hearing casually, as it’s an opportunity the court uses to learn about the situation of your child or parent. Being prepared for the hearing. If the court determines that the person to be appointed as guardian is an appropriate fit, it should issue an order for the appointment of the guardian. Keep in mind that this process must be approved by a judge, so you should take it seriously.
Responsibilities of a Guardian
The West Virginia Code concerning guardianship sets forth specific duties and powers a guardian may have if appointed for a disabled person. W.Va. Code section 44-10-24 sets forth a non-exclusive list of powers guardians may be granted.
"(i) Power to make gifts. Power to make gifts to persons on behalf of the protected person to the same extent as a spouse might exercise over gift-making power. This subsection does not authorize the guardian to make gifts of any type of property, rights, privileges, or benefits that are recited in section twenty-two of this article to children of the protected person unless the guardian is the parent of the protected person, is a grandparent of the protected person, or the will of the protected person or a court order designates the guardian as the guardian or trustee of the children’s interest. This section does not authorize the guardian to make gifts to third persons expressly provided for by the will of the protected person or by applicable law.
(ii) Power to settle a claim. If a claim to the estate of the protected person appears to be valid and just payable to the protected person upon his or her death, the guardian, subject to court approval, may make an agreement with respect to the claim in which the ward would be entitled to receive upon his or her death, provided that receipt by the guardian of the money due or other evidence of the transaction in writing from the debtor shall be a sufficient discharge to the administrator or executor.
(iii) Power to convey or release a technical defect or cloud. The guardian , without court approval, may make any grant, release or assignment to remove a technical defect or cloud on the title to the property, or a reconveyance of property in the guardian’s hands that has been wrongfully obtained or in the guardian’s hands prior to payment for an act or expense of the guardian, and this shall be effective for all purposes as though authorized by the court as part of the guardian’s general powers.
(iv) Power to commence, defend or settle suits, to release, assign or transfer a cause of action, claim or right to recover.
(v) Power to incur reasonable expenses. The guardian shall have power to incur expenses that the guardian considers necessary for the support, maintenance, education and welfare of the protected person without court approval, provided however, funds to which the protected person is entitled upon the death of the protected person shall not be thus expended when the estate is likely to be large in relation to the allowance and the probable necessity of periodic payments for the support and maintenance of the protected person.
(vi) Power to enter into leases. The guardian is empowered, with the court’s approval, to enter into leases of the property of the protected person or lease premises leased by the protected person, with the option to purchase and to sell and purchase at such sales any or all of a protected person’s estate.
End of Guardianship
The process of terminating legal guardianship is a complex one in West Virginia. Just as a court adjudicates the appointment of a guardian, so too must the court be involved in the termination of a guardian if the person under the guardianship is to be released from the authority of the guardian. The law governing the termination of guardianship in West Virginia is found in the aforementioned section, W. Va. Code §44-10-8 (b). Subsection (b) states that "(i)f the basis for the guardianship no longer exists, the guardian may petition the court for an order relieving him or her of the guardianship after giving thirty days’ notice to the persons entitled to receive such notice under section seven of this article and the respondent." If the guardianship was entered under the authority of a durable power of attorney, then the guardianship terminates once such power of attorney is revoked in accordance with West Virginia Code Section 39-4-4a.
As stated in the statute "the basis for the guardianship" encompasses both the mental and physical competency of the ward. Therefore, as a general rule, a guardianship terminates automatically when the person for whom a guardian has been appointed is found by a court of competent jurisdiction to be physically and mentally competent. See West Virginia Code §44-10-12 (c)(3)(b) and §44A-3-18 (c). However, the important qualifier in the statute regarding the termination of guardianship, and one that practitioners and their clients should not overlook, is the requirement that a court of competent jurisdiction must make the finding that the ward is "physically and mentally competent." According to the West Virginia Code, the authority vested in a guardian "is purely fiduciary," Section 44d-3-30(b), which is to say that the guardian does not possess sovereign power over the ward. Instead, the powers and duties of a guardian are "subject to . . . orders, rules and decrees of the court having jurisdiction of the estate of the ward." W. Va. Code §44d-4-1. The substantive law is clear: "A guardian is subject in all respects to the provisions of the West Virginia Code governing the [termination of] guardianships." W. Va. Code §44d-5-9. Even when the enabling statute is permissive and does not make a court ruling a prerequisite to terminating the guardianship, the courts in West Virginia have nonetheless held that the judicial function is essential because it is the only way to bind the ward to the judgment. See In re Mariann B., 257 W. Va. 56, 67, 629 S.E.2d 785, 797 (2006); State ex rel. Guardian ad Litem of Child v. Peters, 194 W. Va. 675, 681, 461 S.E.2d 149, 155 (1995) (explaining that the trial court is in the best position to determine the best interests of a ward); and Hennion v. Lacobacci, 183 W. Va. 37, 41, 394 S.E.2d 197, 201 (1990) (holding that a jury’s determination regarding the competency of a ward is binding upon a circuit court).
Helpful Information for West Virginia Guardians
In addition to state-run programs, a variety of nonprofit organizations and private resources are available in West Virginia to assist guardians with their legal and administrative duties. Potential sources of help include the following:
Legal Assistance
-Legal Aid Society of West Virginia, Inc. (provides low-cost legal services for guardians)
(888) 255-5734
-Legal Aid of West Virginia (provides legal aid to low income residents of the state)
(888) 255-5739
-WVU College of Law Student Legal Services (available to students only)
(304) 293-7433
Financial Resources
-West Virginia Farm Bureau Federation (financial assistance for farmers)
(800) 734-2368
-West Virginia Farmers’ Market Association (information on regional farmers’ markets assisting low-income families)
(304) 529-7637
-Bureau for Children and Families (financial assistance for low-income families with children)
(800) 642-8589
-Mountaineer Food Bank (emergency food and nutrition assistance for low-income individuals and families)
(304) 680-5555
-Sharing Appalachian Project (financial assistance for those in need through private donations)
(304) 765-2070
-211 of West Virginia (provides information regarding local services in West Virginia)
(211)
-Feeding America (information regarding help with household bills)
(304) 761-7600
Support Groups
-Mountain State Family Alliance (supports families with members having disabilities)
(304) 340-2115
-WV ARF (a self-advocacy resource for people with developmental disabilities)
(800) 558-9650
-National Federation for the Blind West Virginia
(301) 589-1686
-National Alliance for Mental Illness West Virginia
(800) 379-7694
-West Virginia Autism Society
(304) 229-3707
Common Questions About Guardianship
Many families are left wondering what matters associated with guardianship are important to understand. In West Virginia, a legal guardian must be appointed by the West Virginia circuit court before that appoint is effective. In other words, a legal guardianship will not actually exist until the circuit court orders it. There are also some misunderstandings about how guardianship works within the state.
Q: Why is it necessary to have the court appoint a guardian?
A: Having a legal guardian appointed through the court system ensures greater accountability and transparency, as well as introduces a degree of oversight into the process. The court is responsible for identifying those best suited to act as a guardian and ensuring all actions taken are in the benefit of the individual under guardianship .
Q: Who is considered eligible to be appointed as a legal guardian?
A: A circuit judge appoints who shall be guardian. The person has to be of sound mind and must not have any prior felonies. While the law does not explicitly list the factors that are considered by the circuit courts, the judge will consider the following:
Q: What are the duties of a legal guardian?
A: Under W.Va. Code §44-10-7, the list of duties for legal guardians include:
Q: Do all legal issues surrounding adult guardianship have to go through the same circuit court?
A: Circuit jurisdiction is established in West Virginia at the circuit court level. Therefore, issues that stem from the appointment of guardians should be held in the same circuit court.