Legal Guardianship in Virginia: Petition, Hearing, and Duties

Legal guardianship in Virginia is a court order giving one adult the authority to make personal and health care decisions for another adult who can no longer make those decisions safely. It is governed by Title 64.2, Chapter 20 of the Code of Virginia, and the courts treat it as a last resort: the arrangement must be no more restrictive than the person’s situation actually requires.¹ To get one, you file a petition in circuit court, pay for a medical evaluation, cooperate with a court-appointed attorney who investigates whether guardianship is really needed, and prove the case at a hearing by clear and convincing evidence.

Before you start, two things are worth knowing. First, guardianship of a minor child runs on a different track under a separate part of the code; the rest of this article is about adult guardianship. Second, if the person already signed a power of attorney or advance directive while they had capacity, you may not need guardianship at all.

Guardian or Conservator — Which One You Actually Need

Virginia splits the job in two. A guardian handles personal affairs: medical treatment, living arrangements, safety, and day-to-day care. A conservator handles money and property.² The court can appoint the same person to both roles or split them between two people.

If your concern is purely about finances, ask for a conservatorship. If it is purely about care decisions, ask for guardianship. Many families petition for both at once because capacity problems rarely stay confined to one area, and the petition form covers either request.

Who Qualifies as Incapacitated

Virginia defines an incapacitated adult as someone who cannot effectively receive and evaluate information, or respond to people, events, or surroundings well enough to meet their own basic health and safety needs without help.³ Poor judgment is not enough. The impairment has to be serious enough that the person genuinely cannot protect themselves.

The standard is strict because the consequences are serious. A person under full guardianship loses control over where they live, what medical treatment they receive, and in some cases whether they can vote. That is why the process requires medical evidence and multiple layers of review.

Check for Less Restrictive Alternatives First

Virginia law requires the court-appointed attorney for the respondent (the guardian ad litem) to consider whether a less restrictive option already covers the person’s needs.⁴ If one does, the court may deny your petition. Three alternatives come up most often:

Durable power of attorney. A financial power of attorney with a durability clause stays in effect after the person loses capacity. If one already exists and the agent is doing the job, you probably do not need a conservatorship. In fact, a guardian cannot override a valid power of attorney without going back to court in a separate proceeding.⁵
Advance directive. Under Virginia’s Health Care Decisions Act, a person can name an agent to make medical decisions if they later become incapable. That agent takes priority over the statutory default list of surrogate decision-makers. A valid directive can take guardianship off the table for health care decisions.⁶
Supported decision-making agreement. Virginia has a supported decision-making statute at Code § 37.2-314.3 that lets a person with a disability pick trusted supporters to help them understand information and reach decisions, while keeping the final say themselves. It avoids the court process entirely.⁷

If you are considering guardianship for an aging parent or a relative with a disability, look through their files first. A power of attorney signed years ago can save months of court proceedings and thousands of dollars.

Filing the Petition

Any person may file. The petition goes in the circuit court of the city or county where the respondent lives or is currently located. If they recently moved into a hospital, nursing facility, or assisted living facility, you can also file where they lived immediately before admission.⁸

The petition requires a lot of information. You will need:

The respondent’s full name, date of birth, residence, mailing address, and Social Security number (filed under seal).
Names and addresses of the respondent’s spouse, adult children, parents, and adult siblings. If none exist, list at least three other known relatives, including stepchildren; if you cannot name three, certify that in the petition.
Any agent already serving under a power of attorney or advance directive, and any guardian or conservator already serving in Virginia or elsewhere. Attach copies if available.
Whether you are asking for a full or limited guardian, a conservator, or both, along with a description of the alleged incapacity.
Who is currently providing care, your recommendation for living arrangements and treatment, and the respondent’s financial resources.
The name and relationship of any proposed guardian or conservator, including anyone the respondent previously nominated.
The respondent’s native language and any alternative communication needs.⁹

Official forms are available through the Virginia Judicial System website or your local circuit court clerk’s office.¹⁰ The circuit court filing fee itself is modest — $10 for the petition, plus a $5 writ tax and a $5 technology trust fund fee.¹¹ The real costs come from the attorneys and the medical evaluation discussed below.

The Medical Evaluation

Before the hearing, a qualified professional must evaluate the respondent and file a written report. The evaluator has to be a licensed physician, psychologist, or another licensed professional with expertise in assessing the type of condition alleged in the petition.¹² The report is filed as a confidential addendum.

It must describe the nature and extent of the respondent’s functional impairments, provide a diagnosis of their mental and physical condition, note any medications that could affect behavior, and where appropriate assess the respondent’s ability to learn self-care and social skills.¹³ If no evaluation is available, the court can proceed without one for good cause as long as the guardian ad litem does not object, or it can delay the hearing and order a report prepared.

Guardian Ad Litem and Notice

As soon as you file, the court appoints a guardian ad litem to represent the respondent’s interests. This is an attorney, not a social worker. Their job is to independently investigate whether guardianship is actually needed. They must personally visit the respondent, explain their rights, review the medical evaluation, consult with the respondent’s primary health care provider, and consider less restrictive alternatives. They file a written report before the hearing.⁴ The court sets the guardian ad litem’s fee, and the petitioner usually pays it or has it taxed as costs.

Notice rules are strict and considered jurisdictional, meaning the case can be thrown out for failing to follow them. The respondent must be personally served with the hearing notice, a copy of the petition, and the order appointing the guardian ad litem. The respondent cannot waive this notice.¹⁴ Everyone else named in the petition gets notice by first-class mail at least 10 days before the hearing. The notice to the respondent must contain a bold-print warning that they may lose the right to control their money, medical decisions, living situation, and voting rights.

The Hearing

At the hearing, you must prove by clear and convincing evidence that the respondent is incapacitated and needs a guardian, conservator, or both.¹⁵ That is a higher bar than the “more likely than not” standard used in most civil cases. The respondent has the right to attend, to be represented by their own attorney (separate from the guardian ad litem), to present evidence, to cross-examine witnesses, and to request a jury trial.

If the evidence is sufficient, the court issues an order of appointment that spells out the guardian’s specific powers and duties. The order must be tailored so the incapacitated person keeps as much independence as possible.¹⁶ The court also gives weight to the respondent’s own preferences about who should serve.

Full vs. Limited Guardianship

Virginia specifically authorizes limited guardianships when the person can still handle some decisions but not others. A limited guardian might be empowered only to make medical decisions, or only to decide where the person lives, while the ward keeps control over everything else.¹⁶ The same applies to conservatorships. If the medical evidence shows the respondent can manage certain areas, the court is expected to preserve that autonomy. Petitioners who ask only for what is actually needed tend to fare better with the judge and the guardian ad litem.

Costs to Plan For

Beyond the small court fees, the main costs are:

Attorney fees for preparing and arguing the petition, which commonly run into the thousands depending on complexity and whether anyone contests the case.
The evaluation from a licensed physician or psychologist.
The guardian ad litem’s fee, set by the court.
If a conservator is appointed, a possible surety bond. Virginia lets a guardian of a minor or a conservator qualify without a bond when the assets under their control do not exceed $25,000; for other fiduciaries, the threshold is $35,000. Above those amounts, the bond premium is an ongoing cost calculated as a percentage of the bond.¹⁷

What You Must Do After Appointment

A Virginia guardian stands in a fiduciary relationship with the incapacitated person and can be held personally liable for breaching that duty. You are not liable for the ward’s own actions unless you were personally negligent, and you are never required to spend your own money on the ward’s behalf.⁵

One rule surprises many new guardians: your authority does not extend to decisions already covered by a valid advance directive or durable power of attorney the person signed before losing capacity. If a prior agent is still acting under a valid power of attorney, you cannot override it without a separate court proceeding to revoke or modify the document.⁵

Visits

You must visit the incapacitated person at least three times a year, with no gap longer than 120 days. At least one visit must be in person. A second can be a video call, and the third can be delegated to a family member, friend, or qualified professional working on your behalf.⁵ Phone calls do not count.

Annual Reports

Your first report is due within six months of qualifying and covers the opening four months of the guardianship. After that, reports are annual, each covering a 12-month period and due within four months of the period’s end. Reports are filed with the local department of social services where the ward lives, on a form prepared by the Office of the Executive Secretary of the Supreme Court, with a $5 filing fee.¹⁸ If you also serve as conservator, a separate accounting goes to the commissioner of accounts.

Each report tracks the ward’s living situation, physical and mental health, and the care provided during the period.¹⁹ Keep detailed records of medical appointments, changes in condition, and significant decisions. Missing a report can prompt the court to summon you or remove you entirely.

Federal Benefits Are Separate

A Virginia guardianship order does not give you automatic control over the ward’s federal benefits. The Social Security Administration does not recognize state court guardianships for managing Social Security payments; it requires a representative payee and makes its own determination about who serves. You apply through the local Social Security office even if you already hold a court order. The VA Fiduciary Program works similarly for veterans’ benefits and operates independently of court guardianship. If the ward receives either, you have to go through those federal processes separately.

If you manage the ward’s income, you also have federal tax obligations. The IRS requires a guardian responsible for an incompetent individual to sign the person’s tax return and file Form 56, Notice Concerning Fiduciary Relationship, to notify the IRS of the arrangement.²⁰

Changing or Ending a Guardianship

Guardianship in Virginia is not necessarily permanent. The incapacitated person, the guardian, or any other interested person can petition the court to restore capacity, modify the arrangement, or end it.²¹ Virginia makes a specific accommodation for the person under guardianship: if they are not represented by an attorney, they can start the process with an informal written communication to the court. No filing fee is charged. The court reviews it and decides whether there is good cause for a hearing.

If the petition seeks to expand the scope of the guardianship, the incapacitated person has the right to a jury trial. For other modification or termination petitions, the court holds a hearing after notice to the incapacitated person, the guardian, and anyone else entitled to notice under the original petition. The court may appoint a new evaluator and a new guardian ad litem.²¹

A guardianship also ends automatically when the incapacitated person dies, or when the guardian dies, resigns, or is removed by the court.

1
Virginia Code Commission. Code of Virginia Title 64.2 – Wills, Trusts, and Fiduciaries
2
Virginia Code Commission. Code of Virginia Title 64.2 – Part D, Guardianship of Incapacitated Persons – Section 64.2-2000
3
Virginia Code Commission. Code of Virginia Title 64.2 – Chapter 20, Guardianship and Conservatorship – Section 64.2-2000
4
Virginia Code Commission. Code of Virginia Title 64.2 – Chapter 20, Article 1 – Section 64.2-2003, Appointment of Guardian Ad Litem
5
Virginia Code Commission. Code of Virginia Title 64.2 – Part D, Guardianship of Incapacitated Persons – Section 64.2-2019
6
Virginia Code Commission. Code of Virginia Title 54.1 – Chapter 29, Article 8, Health Care Decisions Act – Section 54.1-2986.1
7
Virginia Department of Behavioral Health and Developmental Services. Supported Decision-Making and Supported Decision-Making Agreements
8
Virginia Code Commission. Code of Virginia Title 64.2 – Section 64.2-2001, Filing of Petition, Jurisdiction, Instructions to Be Provided
9
Virginia Code Commission. Code of Virginia Title 64.2 – Section 64.2-2002, Who May File Petition, Contents
10
Supreme Court of Virginia. Cover Sheet – Petition for Appointment of Guardian and/or Conservator
11
Supreme Court of Virginia. Circuit Court Fee Schedule, Appendix C
12
Virginia Code Commission. Code of Virginia Title 64.2 – Part D, Guardianship of Incapacitated Persons – Section 64.2-2005
13
Virginia Code Commission. Code of Virginia Title 64.2 – Section 64.2-2005, Evaluation Report, Filed in Separate Confidential Addendum
14
Virginia Code Commission. Code of Virginia Title 64.2 – Section 64.2-2004, Notice of Hearing, Jurisdictional
15
Virginia Code Commission. Code of Virginia Title 64.2 – Part D, Guardianship of Incapacitated Persons – Section 64.2-2007
16
Virginia Code Commission. Code of Virginia Title 64.2 – Section 64.2-2009, Court Order of Appointment, Limited Guardianships
17
Virginia Code Commission. Code of Virginia Title 64.2 – Section 64.2-1411, When Fiduciary May Qualify Without Security
18
Virginia Code Commission. Code of Virginia Title 64.2 – Section 64.2-2020, Annual Reports by Guardians
19
Supreme Court of Virginia. Report of Guardian for an Incapacitated Person, Form CC-1644
20
Internal Revenue Service. About Form 56, Notice Concerning Fiduciary Relationship
21
Virginia Code Commission. Code of Virginia Title 64.2 – Part D, Guardianship of Incapacitated Persons – Section 64.2-2012