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What You Need to Know About Becoming a Legal Guardian of an Incapacitated Person in Virginia

A guardian is someone legally appointed by the court to be responsible for the personal affairs of an incapacitated person. An incapacitated person is essentially someone that lacks the mental capacity to care for him or herself, and needs assistance with normal day to day activities and decision making.

In simple terms, the role of a guardian is to become the legal decision maker for the incapacitated person. A guardian can only be appointed by a court in Virginia. Only after the court has approved a “guardian relationship” with the incapacitated person is the guardian allowed to make binding decisions. Because legal guardians have this great responsibility in the life of an incapacitated person, the courts are particularly careful to make sure all prospective guardians are qualified and capable of carrying out their responsibilities.

The general duty of a guardian is to exercise reasonable care to act in the best interest of the incapacitated person. This includes taking care of the incapacitated person’s estate, managing his or her finances (often their medical expenses), and assisting with their daily decisions to the extent needed. These broad powers give the guardian input into nearly every significant decision in the incapacitated person’s life, demonstrating why the Virginia courts take appointment of guardians very seriously and require that such powers be established only by a judge.

If you seek to become a guardian for an incapacitated loved one, you must file a petition with the court. The petition will require information about the incapacitated person, as well as about the person applying, including financial statements, medical history reports, and lots of other general information. You will need to prove that the incapacitated person is truly in need of a guardian, and that you are qualified and able to act as their guardian. An attorney will be appointed for the incapacitated person to insure that his or her rights are being protected and that appointment of a guardian is necessary.

If you are seeking guardianship of a family member or close friend, it is important to consult with an attorney who has experience handling guardianship matters. An experienced guardianship attorney can help you prepare the appropriate documents that will be needed, assist you with the information you will need to have in court, and defend you if someone challenges your petition for guardianship.

If you are seeking to become a guardian, please feel free to call our office to schedule an appointment so that you can be better informed of how best to proceed.


An outstanding job on my case to have custody, visitation and support decided in my home state instead of Virginia after I separated from military service.- A.E.