When necessary, the Court steps in to create a guardianship for a child or incapacitated person. A guardianship creates a caretaker relationship for a child with out-of-home care while maintaining the child’s parents’ rights. It can also be created to help an adult who is unable to manage his or her personal or financial affairs. Only circuit judges can decide if a person meets the threshold for the creation of a guardianship. 

To be appointed as guardian, a person has to petition the circuit court. The circuit court will then hold a hearing on a petition filed. The court can have this hearing in response to a petition filed by a party seeking guardianship, or at their own discretion if they deem it necessary to appoint a guardian. This process is laid out in detail in Virginia Code § 64.2-2115. 


Guardian Has A Fiduciary Duty to Seek Prosecution and Defend Actions Involving Incapacitated Person

Virginia Code § 64.2-2019(A) provides that a guardian stands in a fiduciary relationship to the incapacitated person for whom he was appointed guardian. The appointed guardian is a fiduciary and has a duty to seek prosecution and defend actions involving the incapacitated person. This means that when a court appoints a guardian for an incapacitated person, the person then loses their ability to file suit in their own name. The guardian has to file suit on behalf of the incapacitated person. This was seen in Lopez-Rosario v. Habib, a 2016 case in which the Supreme Court of Virginia held that as guardians, the plaintiff’s parents were her fiduciaries and had the authority and obligation to prosecute on the plaintiff’s behalf.


Difference Between a Guardianship and Guardian ad litem

A guardian ad litem is a legal advocate and representative in a single court action. Guardian ad litems are appointed to ensure that a person’s best interests are protected in a legal dispute. They can be appointed to represent children in custody and visitation disputes, or to represent an incapacitated adult. 

A guardian, on the other hand, has the legal authority to care for a person who cannot make informed decisions on his or her own.  

If you feel your client needs a guardian appointed, or your client is seeking guardianship on someone else’s behalf, it is important that you advise your client of all the duties and responsibilities that go along with said guardianship. In elder law terms, remember: guardian, guarding the health and conservator conserving the money.

H. Van Smith
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Trusted Virginia Attorney Serving Richmond to Williamsburg