Guardianship in Virginia: The Process, the Requirements, and What a Judge Has to Find

Guardianship is the most restrictive thing a Virginia circuit court can do to an adult short of a criminal sentence. It moves the right to decide where someone lives, what medical care they accept, and who they are allowed to see from that person to somebody else. Virginia law treats it that way on purpose. The statute that governs it, Chapter 20 of Title 64.2, builds in a court-appointed investigator, a medical evaluation, a jury right, a clear and convincing evidence standard, and a standing instruction to look for something less restrictive first. Families usually arrive at my office after months of watching a parent decline, expecting a form to fill out. What they find instead is a full adversarial proceeding in circuit court, with their parent as the respondent. This article walks through what that proceeding actually requires, in the order it happens.

Guardian, conservator, and guardian ad litem are three different jobs

Almost every guardianship conversation starts with a vocabulary problem, and the vocabulary problem creates real confusion about who is asking a court for what. Virginia uses three similar sounding terms for three roles that do not overlap.

A guardian is appointed to handle personal affairs. Under the definition in Va. Code § 64.2-2000, that means responsibility for decisions about support, care, health, safety, habilitation, education, therapeutic treatment, and residence. No money authority comes with the title.

A conservator is appointed to manage the estate and financial affairs. Bank accounts, real estate, benefits, bills, investments. No authority over medical care or living arrangements comes with that title either.

A guardian ad litem is neither. It is an attorney the court appoints to represent the interests of the person the petition is about, investigate whether the petition should be granted at all, and file a report. The guardian ad litem is on nobody’s side in the family. In a guardianship case the guardian ad litem is often the single most influential participant, because the judge reads that report before anyone testifies.

The confusion runs the other direction too. Several families have come to me convinced they need a guardianship because a guardian ad litem was appointed in an unrelated custody case involving their grandchildren. Those are different proceedings under different statutes. The guardian ad litem in a custody case is investigating a child’s best interests, not an adult’s capacity.

One practical note about the guardian and conservator split. The court may appoint the same person to both roles, and in family cases it usually does. But the powers are granted separately and limited separately. A daughter who is appointed guardian of her mother and nothing else has no authority to sign a check, close an account, or sell a car, no matter how obviously those things need doing.

What a Virginia judge has to find before appointing anyone

The threshold question is capacity, and the statutory definition is narrower than the everyday meaning of the word. Under § 64.2-2000, an “incapacitated person” is an adult a court has found incapable of receiving and evaluating information effectively, or responding to people, events, or environments, to such an extent that the person lacks capacity to either meet the essential requirements for health, care, safety, or therapeutic needs without a guardian, or manage property and financial affairs and provide for support without a conservator.

Two limits inside that definition do more work than families expect.

The first is a sentence that stops a large number of petitions: “A finding that the individual displays poor judgment alone shall not be considered sufficient evidence that the individual is an incapacitated person within the meaning of this definition.” An adult who spends money in ways their children find alarming, dates someone the family dislikes, refuses to move out of a house that is too big, or declines a recommended surgery has not thereby become incapacitated. Virginia adults retain the right to make decisions other people consider unwise. That right is not conditioned on being right.

The second is that incapacity is not global. The definition is written in two clauses joined by “or,” and the two clauses map onto the two appointments. A person can be plainly unable to manage a brokerage account and entirely able to decide where to live. When that is the record, the correct outcome is a conservator and no guardian, or a limited guardian with a narrow grant, not a full appointment covering everything.

The burden of proof matches the stakes. Under § 64.2-2007(D), the court or jury must determine incapacity and need “on the basis of clear and convincing evidence.” That is higher than the preponderance standard used in most civil cases, and it is why the medical evaluation carries so much weight.

There is a third limit worth naming because it changed recently. A finding of incapacity is no longer, by itself, a finding that someone cannot vote. More on that below, because it is now a separate finding with its own evidentiary requirement.

Less restrictive alternatives come first, and the statute says so three times

The single most useful thing to understand about Virginia guardianship law is that the statute is designed to talk families out of it. The obligation to consider something less restrictive appears in three separate places, aimed at three different participants.

The guardian ad litem has to consider it. Under § 64.2-2003(B), the investigation must include “considering whether a less restrictive alternative to guardianship or conservatorship is available, including the use of an advance directive, supported decision-making agreement, or durable power of attorney.” If the guardian ad litem concludes that a less restrictive alternative is not advisable, subsection C requires a written explanation of why.

The court has to consider it. Section 64.2-2007(C) lists seven factors, and the third is “the availability of less restrictive alternatives, including advance directives, supported decision-making agreements, and durable powers of attorney.”

And then the statute goes further than consideration. Subsection D of § 64.2-2009 states flatly that a guardian “need not be appointed” for a person who has an agent under a valid advance directive, unless the court determines the agent is not following the principal’s wishes or a decision is needed outside what the directive covers. The same subsection says a conservator need not be appointed for a person who has an agent under a durable power of attorney, or whose only or major income is a government benefit paid to a representative payee.

The gap this creates is the most common and the most expensive one I see. A durable power of attorney and an advance directive together cost a fraction of a contested guardianship, take an afternoon, and can be signed by anyone who still has capacity to sign them. The window for signing them closes exactly when the family finally becomes worried enough to act. If a parent has begun to decline but can still understand and sign, the correct next call is about the documents that avoid a guardianship, not about filing one.

There is a sequencing point buried in that. A durable power of attorney and an advance directive are planning documents, signed by a person who still has capacity. A guardianship is a remedy, imposed by a court on a person who no longer does. The first pair is chosen. The second is ordered. Families who understand that distinction early tend to spend an afternoon on it rather than a year.

Supported decision-making deserves a specific mention because it is newer and underused. Section 37.2-314.3 defines it as an agreement between a principal, meaning an adult with an intellectual or developmental disability, and a supporter who helps the principal monitor and manage affairs, access and understand information, understand consequences, and communicate and implement decisions. Authority never moves. For a young adult with a developmental disability who is aging out of school services, that distinction is the difference between having a legal identity and having a guardian.

Where the petition gets filed

Venue is set by § 64.2-2001(A), and it follows the adult rather than the family. The petition goes to the circuit court of the county or city where the respondent is a resident or is located, or where the respondent lived immediately before becoming a patient in a hospital or a resident in a nursing facility, convalescent home, or assisted living facility.

That last clause is the one that matters in a lot of Fredericksburg-area cases. A parent who lived in Stafford for thirty years and moved into a facility in Spotsylvania eight months ago is still a Stafford case under the statute, because venue attaches to where they resided immediately before the admission. The court that first takes the case may transfer venue if a transfer would be in the respondent’s best interest, but that is a discretionary call under subsection E, not the family’s choice.

Guardianship and conservatorship are circuit court matters. They are not filed in general district court or in the juvenile and domestic relations district court, and the clerk cannot appoint an adult guardian the way a clerk can qualify a guardian for a minor’s estate.

Filing in the wrong court is not fatal in the way defective notice is, but it costs weeks. Confirm where the adult actually resided before any facility admission before anything is drafted.

If the adult already has a guardian appointed in another state, or lived somewhere else until recently, the jurisdictional question is answered by a different statute. Subsection B of § 64.2-2001 points to the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, which supplies “the exclusive jurisdictional basis” for a Virginia court to appoint a guardian or conservator for an adult. That act turns on home state, defined in § 64.2-2105 as the state where the adult was physically present for at least six consecutive months before the petition, and on significant-connection factors including where family lives, where property sits, and where the adult votes, files taxes, registers a vehicle, and receives services. If a guardianship is already running elsewhere and needs to move here, that is a transfer proceeding rather than a new appointment.

Who can file, and what the petition has to contain

The filing side is wide open. Under § 64.2-2002(A), “any person, including a community services board and any other local or state governmental agency, may file a petition.” There is no requirement to be a relative, and no priority list of who gets to file first. Hospitals file. Nursing facilities file. Adult protective services files. A neighbor could file.

What narrows things is the content requirement in subsection B, which lists thirteen items the petition must include to the extent known at filing. This is where families discover that a guardianship petition is an investigation of their own household before it is anything else.

Two items on that list cause more trouble than the rest. The family list is not optional and it is not curated. A petitioner cannot leave out the sibling who will object, because those names drive the notice requirement, and defective notice is jurisdictional. And item five requires disclosure of any existing power of attorney or advance directive, with a copy attached. A petitioner who already holds a valid power of attorney is, in effect, required to hand the court the document that may make the petition unnecessary.

The guardian ad litem runs the investigation

Section 64.2-2003(A) is not discretionary. “On the filing of every petition for guardianship or conservatorship, the court shall appoint a guardian ad litem to represent the interests of the respondent.” Every petition, without exception, including uncontested ones where the whole family agrees.

Subsection B assigns seven duties. The guardian ad litem must personally visit the respondent. Advise the respondent of the right to counsel and the right to a hearing, and certify to the court that the advice was given. Recommend appointment of counsel if counsel appears necessary. Notify the court as soon as practicable if the respondent asks for counsel, whether or not the guardian ad litem thinks it is warranted. Investigate the petition and the evidence, request further evaluation if needed, consider less restrictive alternatives, and file a report. Make a good faith effort to consult the respondent’s primary health care provider directly, unless that provider wrote the evaluation report. And personally appear at every court proceeding and conference in the case.

There is an additional duty aimed at young adults. If the respondent is between seventeen and a half and twenty-one years old and has an Individualized Education Plan and a transition plan, the guardian ad litem must review both and include the results in the report.

The report itself, required by subsection C, is the document that decides most cases. It has to address whether the court has jurisdiction, whether a guardian or conservator is needed at all, what the scope of the powers should be, and the suitability of the person the petition proposes. That suitability analysis runs through eleven specific considerations: geographic location, the relationship to the respondent, ability to carry out the duties, commitment to the respondent’s welfare, potential conflicts of interest, whether the person works as a full-time professional guardian, expected capacity, the respondent’s own wishes, the recommendations of relatives, whether the person has been named as a perpetrator in any substantiated adult protective services complaint involving this respondent, and whether the respondent lacks capacity to understand voting.

The report must also recommend the amount of surety on the conservator’s bond and address proper residential placement. And it has to explain, in writing, any decision not to recommend counsel for the respondent, any determination that a less restrictive alternative is not advisable, and any determination that a limited appointment would not be appropriate. Those three explanations are the statute’s way of forcing the least restrictive question onto the record whether or not anyone raises it.

Subsection D gives the guardian ad litem real investigative reach. Health care providers, school divisions, local departments of social services, criminal justice agencies, banks, and investment advisers must disclose records the guardian ad litem determines are necessary, at no charge, on presentation of the appointment order and an order allowing release of nonpublic personal information. A criminal justice agency can withhold only where disclosure would impede an ongoing investigation.

Notice is jurisdictional, and the warning is written into the statute

Section 64.2-2004 opens with a sentence that ends a number of cases: the respondent must receive reasonable notice of the hearing, “may not waive notice, and a failure to properly notify the respondent shall be jurisdictional.” An adult cannot consent their way out of being served, and a family that decides service would be upsetting has not made a kindness. It has voided the proceeding.

Service on the respondent must be personal, whether or not the respondent lives in Virginia. In practice the guardian ad litem usually does it, and the statute allows a certification of personal service inside the guardian ad litem’s report to count as valid service. Everyone else on the petition’s family list gets a copy of the notice and petition by first-class mail at least ten days before the hearing, and the court can waive that advance period only for good cause.

The notice is not a form letter. Subsection E requires it to state the purpose of the proceedings in at least fourteen-point type, inform the respondent of the right to counsel and the right to a hearing, and carry a warning in conspicuous bold print stating that at the hearing the respondent may lose many rights, that a guardian may be appointed to make personal decisions, that a conservator may be appointed for property and finances, and that the appointment may affect how money is spent, how property is managed, who makes medical decisions, where the respondent lives, and whether the respondent is allowed to vote.

The notice also tells everyone on the family list how to join the case. Any adult or entity named in the petition may become a party by filing a pleading under Rule 1:4, which is how an objecting sibling gets standing without filing a competing petition.

The medical evaluation the court actually reads

Under § 64.2-2005, a report evaluating the respondent’s condition is filed in a separate confidential addendum and provided, within a reasonable time before the hearing, to the guardian ad litem, the respondent, and any other party. It has to be prepared by one or more licensed physicians or psychologists, or licensed professionals skilled in assessing and treating the conditions the petition alleges.

Four contents are required: a description of the nature, type, and extent of the incapacity including specific functional impairments; a diagnosis or assessment of mental and physical condition, including whether the person is on medications that may affect actions or demeanor and, where appropriate, an evaluation of ability to learn self-care, adaptive behavior, and social skills with a prognosis; the dates of the examinations; and the signature and license type of the evaluator.

The phrase carrying the most weight is “specific functional impairments.” A letter saying a patient has dementia is a diagnosis, not an evaluation. What the court needs is what the person can and cannot do: manage medications, recognize a scam call, understand a lease, get to a bathroom safely. Petitions arrive regularly with a diagnosis and no functional detail, and they stall, because a diagnosis alone cannot satisfy a clear and convincing standard aimed at functional capacity.

The court may proceed without the report for good cause if the guardian ad litem does not object, or may order one and delay the hearing until it is filed. The report is admissible in open court as evidence of the facts it states unless the respondent’s counsel or the guardian ad litem objects.

The hearing, the jury right, and the 120-day clock

A Virginia guardianship hearing is a trial. Section 64.2-2007(A) gives the respondent a jury trial on request, along with the right to compel the attendance of witnesses, present evidence, and confront and cross-examine witnesses. Very few guardianship cases go to a jury, but the right exists, and its existence sets the tone for everything else.

Subsection B sets the schedule: “The hearing shall be conducted within 120 days from the filing of the petition unless the court postpones it for cause.” The proposed guardian or conservator has to attend absent good cause and, where appropriate, present a recommendation on living arrangements and a treatment plan. The respondent is entitled to be present at the hearing and at every other stage, and must be present if the respondent asks or if the guardian ad litem asks. The hearing may be held wherever the court directs, including at the place where the respondent is located, which is how hearings end up in nursing facility conference rooms.

One sentence in subsection B rewires how families should think about an uncontested case: “Whether or not present, the respondent shall be regarded as having denied the allegations in the petition.” There is no default. Silence is a denial. A petitioner still has to prove incapacity by clear and convincing evidence even when nobody shows up to argue the other side.

If the court or jury finds by clear and convincing evidence that the respondent is incapacitated and in need of a guardian or conservator, the court appoints “a suitable person, who may be the spouse of the respondent,” and does so “giving due deference to the wishes of the respondent.” That deference language is real. A respondent who says clearly that they want their younger daughter rather than their older son has stated a preference the court is directed to weigh.

The court also has to instruct the appointee on the spot. Under subsection D the judge informs the guardian or conservator of the duties and powers in Article 2, and further informs them that to the extent feasible the respondent “should be encouraged to participate in decisions, act on his own behalf, and develop or maintain the capacity to manage his personal affairs if he retains any decision-making rights.”

There is a conflict-of-interest rule people rarely anticipate. Absent good cause, the court shall not appoint as guardian or conservator an attorney who was engaged by the petitioner to represent the petitioner within three calendar years of the appointment, and the bar extends to every other attorney and employee of that lawyer’s firm. The proposed appointee has to certify at appointment that any such representation has been disclosed. Compensation paid by a petitioner to an attorney for serving as guardian does not itself count as representing the petitioner.

What the order has to say

An appointment order that simply names a guardian is defective. Section 64.2-2009(A) requires eight things in every order. It must state the nature and extent of the incapacity. Define the powers and duties so as to permit the person to care for themselves and manage property to the extent they are capable. Specify whether the appointment is limited to a set length of time. Specify whether the person has been found disqualified to vote, with the supporting findings of fact and conclusions of law. Specify any other legal disabilities. Include any limitations that follow from the seven factors. Set the guardian’s bond and the conservator’s bond and surety. And, where the petition was brought before an eighteenth birthday, state whether the order takes effect immediately or on that birthday.

Section 64.2-2007 adds a further requirement that is easy to miss: the court “shall make specific findings of fact and conclusions of law in support of each provision of any orders entered.” Each provision. Not a general finding of incapacity followed by a standard grant of everything.

Subsection B is the authority for limited appointments, and it is written broadly. The court may appoint a limited guardian for a person capable of addressing some of the essential requirements of their own care, “for the limited purpose of medical decision making, decisions about place of residency, or other specific decisions regarding his personal affairs.” A limited conservator may be appointed for someone capable of managing some property, for purposes specified in the order. In a case where a parent can handle daily life but cannot manage a rental property or resist a phone scam, a limited conservatorship over specific accounts is usually the right ask, and it is a far easier petition to prove and to live with.

Every order appointing a guardian must also carry four statements in conspicuous bold print at fourteen points or larger: the appointment itself with a statement of which rights are removed and which are retained, the duty to encourage participation and not to restrict the person’s contact with others, the annual report obligation, and the fact that the order can be revisited. The fourth statement includes something that matters a great deal in practice. If the person under guardianship is not represented by counsel, they may start the process of restoration, modification, or termination by sending informal written communications to the court, and the order has to print the court’s mailing address, email address, and physical address so they know where to send it.

Incapacity is no longer a finding that someone cannot vote

Section 64.2-2009.2 took effect July 1, 2026, and it changed a default that had been in place for a long time. No person is disqualified from voting for lack of capacity unless a court makes a specific finding, by clear and convincing evidence, that the person lacks the capacity to understand the act of voting. A general finding of incapacity does not carry the voting disqualification with it anymore.

The section adds two protections. A court may not rest a voting disqualification on the guardian ad litem’s determination alone without a showing that reasonable accommodation appropriate to the person’s diagnosis or condition was provided for the purpose of assessing that capacity. And in reaching the finding, a court may not consider the results of, or a failure to complete, any test that evaluates the person’s ability to read or write, educational achievement or knowledge of a subject, or moral character. Medical reports are expressly not treated as prohibited tests.

The statute also reaches backward. Anyone deemed disqualified to vote for lack of capacity before July 1, 2026 may petition the court that made the determination for review under the new standard. If no petition is filed, the review happens automatically at the person’s next periodic review hearing.

Qualification, bond, and what the whole thing costs

Appointment and qualification are two different events. The court appoints in the order. The guardian or conservator then qualifies before the clerk under § 64.2-2011(A) by subscribing to an oath to perform the duties faithfully, posting bond, and accepting in writing any educational materials the court provides.

The bond rules are asymmetric and worth knowing before anyone is surprised. No surety is required on the bond of a guardian. The conservator’s bond may be with or without surety, as the court orders, and the guardian ad litem is required to recommend an amount. The clerk has independent authority under § 64.2-2018 to take the bond, set the penalty, and pass on the sufficiency of the surety.

Separately, § 64.2-1411(A) lets a court or clerk allow a conservator or a guardian of a minor’s estate to qualify without surety where there are no assets or the assets coming into the fiduciary’s hands do not exceed $25,000. For other fiduciaries the figure is $35,000. Whether surety is required drives real cost, because a surety bond carries an annual premium paid out of the estate. If you want the detail on how the amount itself is calculated, that lives in a separate piece on how bond and surety are determined.

Once qualified, the clerk issues a certificate of qualification with a copy of the order appended. That certificate is the working credential. Under subsection D, anyone dealing in good faith with a fiduciary who presents a currently effective certificate may presume the fiduciary is authorized, except as limited by the order. A person must accept or reject the certificate within seven business days, and a refusal in violation of the section exposes the refusing party to a court order compelling acceptance plus reasonable attorney fees and costs. There are four defenses: the transaction would violate state or federal law, the person has actual knowledge the authority ended, the person believes in good faith the certificate is invalid or the act is outside the authority, or the person believes in good faith the transaction may involve or facilitate financial exploitation.

On cost, the number that surprises people most is the filing fee. Under § 17.1-275(A)(42), filing a petition under §§ 64.2-2001 and 64.2-2013 costs $10. That is the fee for the petition, not the price of the case. Service fees, court costs, the guardian ad litem’s fee set by the court, court-appointed counsel if any, the evaluator, and the surety premium all sit on top of it, and those are where the real money goes.

Section 64.2-2008 decides who pays. Service fees and court costs may be waived on an allegation under oath that the respondent’s estate is unavailable or insufficient. If a guardian or conservator is appointed and the court finds the petition was brought in good faith and for the benefit of the respondent, the court shall order the petitioner reimbursed from the estate for all reasonable costs and fees, if the estate can cover it. If no appointment is made but the petition was still brought in good faith and for the respondent’s benefit, reimbursement is discretionary rather than mandatory. And if the court finds the petition was brought in bad faith or not for the respondent’s benefit, it may make the petitioner pay the respondent’s reasonable costs and fees. Where the adult is indigent, subsection B puts the fees and costs fixed or taxed by the court on the Commonwealth.

What does drive the number is the shape of the case. An uncontested petition with a cooperative family, a complete evaluation, and a guardian ad litem who can reach everyone quickly is a different matter from one where two siblings each propose themselves, the respondent asks for counsel, and the court orders a second evaluation. A jury demand changes it again. So does a conservatorship over a large or complicated estate, because the court is more likely to require surety, and a surety bond is an annual premium rather than a one-time charge. The same $10 fee applies later if anyone petitions to restore capacity or modify the order, and the informal written communication route under § 64.2-2012(A1) carries no fee at all.

Two of the costs are set by the judge rather than by a schedule. The guardian ad litem’s fee is fixed by the court and either paid by the petitioner or taxed as costs, as the court directs. Court-appointed counsel for the respondent, if the court decides counsel is needed to protect the respondent’s interest, is likewise fixed by the court and taxed as part of the costs of the proceeding. Neither is predictable at filing, and neither is optional once ordered. On a petition to restore, modify, or terminate, the court may also allow reasonable compensation from the estate to any guardian ad litem, attorney, or evaluator appointed for that proceeding.

None of the figures above is a legal fee, and none of them is the number a family should plan around. They are the statutory reference points a court works from.

What a guardian actually has to do after appointment

Families often treat the appointment as the finish line. Under § 64.2-2019 it is the starting line, and the ongoing obligations are more specific than most new guardians expect.

A guardian stands in a fiduciary relationship to the person and may be held personally liable for breaching it. Two protections cut the other way: a guardian is not liable for the acts of the incapacitated person unless personally negligent, and a guardian is never required to spend personal funds on the person’s behalf.

Subsection B contains the limit that most often catches new guardians. A guardian’s duties and authority “shall not extend to decisions addressed in a valid advance directive or durable power of attorney previously executed by the incapacitated person.” If a parent signed an advance directive in 2015 naming one child as health care agent, and a different child is later appointed guardian, the 2015 document still controls the decisions it covers. The guardian can ask the court to modify the agent designation, but not the person’s directives about specific treatments, and a durable power of attorney can be revoked or suspended only through a court proceeding under the Uniform Power of Attorney Act. If a document needs to be set aside, that is its own proceeding with its own standard.

Subsection D reserves three decisions to the court no matter how broad the order is. A guardian must get prior court authorization to move the person to another state, to terminate or consent to termination of the person’s parental rights, or to initiate a change in the person’s marital status. If a guardianship needs to relocate out of Virginia, that is a court application, not a moving day.

Subsection E1 added a training requirement. A guardian, and any skilled professional the guardian retains to perform guardianship duties, must complete the training developed by the Department for Aging and Rehabilitative Services within 120 days after qualification, unless the same training was completed within the past 36 months in connection with another appointment. Under § 51.5-150.1 that training covers the duties of guardians, how to complete annual reports, how to involve the person in decisions, medical advocacy, and decision-making on behalf of others.

Read subsection C alongside the annual report and the design becomes clear. The guardian must maintain sufficient contact to know the person’s capabilities, limitations, needs, and opportunities, and must visit at least three times a year with no gap longer than 120 days. Those are not aspirational targets. They are the facts the guardian will be asked to certify under oath, by date and by method, in the report that goes to the local department of social services.

Subsection F gives a guardian authority to arrange the funeral and disposition of remains, including cremation, if nobody else has been designated under § 54.1-2825, or if a good faith effort to locate the next of kin named in the petition finds them unwilling or unreachable.

The annual report is where guardianships fail

Section 64.2-2020 sets a reporting obligation that runs to the local department of social services rather than to the court. The first report is due within six months of qualification and covers the first four months. Each report after that is due within four months of the end of the twelve-month period the previous report covered. A $5 filing fee accompanies each one, and the local department keeps it for adult protective services in that jurisdiction.

The department files a copy with the clerk of the appointing circuit court within sixty days of receiving it. Twice a year, the department also files a list of every guardian more than ninety days delinquent. If the department reports a missing report, the court may issue a summons or a rule to show cause. The guardian certifies the report under oath, and a false entry or statement carries a civil penalty of up to $600.

Read that list next to the visit chart above and the design becomes obvious. The report asks how many visits happened, who made them, and what explains any gap longer than 120 days. A guardian who has not been visiting cannot complete the form truthfully, and completing it untruthfully is a penalty-bearing act. This is the enforcement mechanism, and it is aimed squarely at absentee guardians.

What a conservator has to do

A conservator’s obligations sit in three statutes. Section 64.2-2021 supplies the standard of conduct: exercise reasonable care, diligence, and prudence at all times, act in the person’s best interest, and consider the person’s expressed desires and personal values to the extent known. Take care of and preserve the estate and manage it to the best advantage. Apply the income, and if income is insufficient the corpus, to the person’s debts, reasonable compensation to the conservator and any guardian, and the maintenance of the person and any legal dependents.

Subsection C adds a duty that mirrors the guardian’s: encourage the person, to the extent feasible, to participate in decisions, act on their own behalf, and develop or regain capacity to manage their own affairs. In doing so, the conservator considers the size of the estate, the probable duration of the conservatorship, the person’s accustomed manner of living, other available resources, and the guardian’s recommendations.

Section 64.2-2022 supplies the powers, which may be exercised without prior court authorization unless the order says otherwise: ratifying or rejecting contracts the person entered, paying sums for the person’s benefit or a dependent’s, maintaining insurance, managing the estate after the conservatorship ends until it is delivered, executing instruments, initiating a proceeding to revoke a power of attorney or to make an augmented estate or family allowance election, and borrowing money and pledging estate property to secure it.

Real estate is where the court reasserts control. Under subsection B the court may impose conditions before any interest in real estate is conveyed, including raising the bond, requiring an appraisal, notice to interested parties, consultation with the commissioner of accounts and the guardian, and listing through a common source information company. The conservator reports compliance to the commissioner of accounts, the commissioner reports to the court, and the conveyance cannot close until that report is filed and confirmed.

That last row is the one to sit with. A conservator does not inherit the power to do estate planning. Section 64.2-2023(C) makes the court weigh nine considerations before authorizing gifts, disclaimers, or trusts, including the effect on the estate’s ability to meet the person’s foreseeable health and maintenance needs, the person’s existing estate plan, prior patterns of giving, tax consequences, and the effect on eligibility for medical assistance. Medicaid planning through a conservatorship is possible, and it is a supervised proceeding rather than a strategy a conservator executes alone. Where a conservator crosses those lines, the consequences run through the fiduciary breach and reporting process.

A guardian cannot cut off the family

One of the more painful patterns in guardianship is a newly appointed guardian deciding which relatives are allowed to visit. Section 64.2-2019(E) prohibits a guardian from restricting the person’s ability to communicate with, visit, or interact with anyone with whom they have an established relationship, unless the restriction is reasonable to prevent physical, mental, or emotional harm or financial exploitation, and only after considering the person’s expressed wishes.

Section 64.2-2019.1 supplies the procedure. Any restriction must be the least restrictive means possible, and may take the form of limits on time, duration, location, or method, supervised visitation, or a prohibition on in-person visits. The guardian must give the restricted person written notice on a form developed by the Office of the Executive Secretary of the Supreme Court, stating the terms, the reasons, and how to challenge it in court. The guardian must tell the person under guardianship and give them a copy, unless the guardian has a good faith belief that doing so would be detrimental to their health or safety. Copies go to the local department of social services and to the appointing court, and to any facility where the person lives.

The section has teeth in both directions. If the court finds a guardian imposed a restriction in bad faith, primarily to harass, or that was clearly frivolous or vexatious, it may order the guardian to pay the restricted person’s costs and attorney fees out of the guardian’s personal funds. If the court finds the challenge itself was made in bad faith or was frivolous or vexatious, it may order the challenger to reimburse the guardian.

Guardianship is not permanent

Section 64.2-2012 exists to keep guardianships from calcifying, and it is broader than most families realize. A petition to restore capacity, modify the appointment, terminate it, remove the guardian or conservator, or order other relief may be filed by the incapacitated person, by the guardian or conservator, by any other person, or on the court’s own motion. The filing fee is the same $10.

There is also a path that requires no petition at all. Under subsection A1, if the person under guardianship is not represented by counsel, they may start the process by sending an informal written communication to the court. The court reviews it, decides whether there is good cause, and either sets a hearing or takes no action, and either way responds by court order. No filing fee is assessed. This is why every appointment order has to print the court’s mailing address, email address, and physical address in bold type.

The standards of proof are asymmetric on purpose, and the asymmetry always favors less intervention.

Expanding a guardianship is treated as a fresh deprivation of rights and carries the full apparatus: jury right, personal service, a guardian ad litem, and clear and convincing evidence. Narrowing one requires only a preponderance. A court can also revoke, modify, or terminate on a finding that the person no longer needs the protection, that the scope granted is excessive or insufficient, that capacity has changed, or that circumstances make the arrangement unnecessary or inadequate.

Beyond petitions, the periodic review hearings in §§ 64.2-2009(A1) and 64.2-2009.1 give the case a standing calendar. The first review comes no later than a year after appointment and then no later than every three years, unless the court waives or reschedules with reasons stated in the order. The court may not waive that first review where the petitioner was a hospital, a nursing facility, an assisted living facility, or a health care provider other than a family member. At each review, the court assesses whether the fiduciary is doing the job, whether the arrangement is still necessary and correctly scoped, and whether the person’s voting capacity status has changed.

Guardianship of a minor is a completely different proceeding

The single most common error I see is a family reading about adult guardianship when what they actually need sits in Chapter 17 of Title 64.2, or the reverse. The chapters do not talk to each other.

Under § 64.2-1700, the parents of an unmarried minor are the joint natural guardians of the child, provided they live together, are competent to transact their own business, and are not otherwise unsuitable. On the death of one parent the survivor becomes natural guardian, and if one parent has abandoned the family the other becomes natural guardian. No court order creates that status.

Section 64.2-1701 lets any parent appoint a guardian of the person of a minor child by will, and a guardian for the estate the parent leaves that child. The limit written into the same subsection is the one families miss: a guardian of the person of a minor other than a parent “is not entitled to custody of the person of the minor so long as either of the minor’s parents is living and such parent is a fit and proper person to have custody.” A will nomination does not override a surviving fit parent. And under subsection B, the appointment is void if the named guardian renounces it or fails to appear in the court where the will was probated within six months after probate to accept and give any required bond. That six-month clock is covered in more depth in the pillar on wills, guardians, and who raises your children.

One bridge between the two chapters is worth flagging for parents of children with disabilities. Section 64.2-2001(C) allows a petition for adult guardianship to be filed as early as six months before the child’s eighteenth birthday when the petitioner is a parent or guardian, and permits the court to enter the appointment order before that birthday, specifying whether it takes effect immediately or on the birthday. That six-month runway exists so the transition to adulthood does not create a gap in authority. Filing early is often the difference between a smooth handoff and a scramble in the middle of a school year.

The reverse transition catches people too. A Chapter 17 guardianship of a minor ends when the child reaches majority, and nothing carries over. A young adult with a significant disability who had a guardian at seventeen has, at eighteen, the same legal authority over their own life as any other adult, unless a circuit court has entered an order under Chapter 20 saying otherwise. Schools, physicians, and benefits administrators will treat them accordingly, which is usually how families discover the gap. If the goal is continuity rather than a scramble, the Chapter 20 petition gets filed in the six-month window before the birthday and the order says it takes effect on the birthday itself.

The mistakes that cost families the most

Most of what goes wrong in a guardianship goes wrong before the petition is filed, and almost all of it is addressed somewhere in the statute. Six patterns account for the majority of the trouble.

Waiting until capacity is gone. A durable power of attorney and an advance directive can only be signed by someone who still has capacity to sign them. Every week of delay narrows that window, and the day it closes the cost of the same protection multiplies.

Asking for everything. Petitions requesting full guardianship and full conservatorship for someone who is functionally impaired in one area invite a longer, harder case. The statute pushes toward limited orders in the seven factors, in the guardian ad litem’s mandatory explanation, and in the requirement that the order define powers so as to permit self-care to the extent the person is capable.

Leaving a relative off the family list. Notice is jurisdictional. A petition that omits an adult child to avoid a fight has not avoided the fight, it has created grounds to unwind the order later.

Bringing a diagnosis instead of an evaluation. Clear and convincing evidence of incapacity is built out of specific functional impairments, which is what § 64.2-2005(B)(1) requires. A one-page letter naming a condition does not carry that burden.

Treating the appointment as the end. Three visits a year with no gap over 120 days. Training within 120 days. The first annual report within six months. The first accounting within six months. A periodic review within a year. None of those generate a reminder.

Assuming the guardian outranks every document. A valid advance directive or durable power of attorney signed while the person had capacity keeps controlling the decisions it covers, and displacing it takes a separate court proceeding.

Frequently asked questions about guardianship in Virginia

How long does it take to get a guardianship in Virginia?

Section 64.2-2007(B) requires the hearing to be held within 120 days from the filing of the petition unless the court postpones it for cause. The practical timeline is usually shorter than the outer limit and depends on how quickly the medical evaluation is completed and how quickly the guardian ad litem can visit, investigate, and file the report. Contested cases, cases where the respondent requests counsel, and cases where the court orders a further evaluation take longer.

Do I need a lawyer to file for guardianship in Virginia?

The statute does not require the petitioner to have counsel. It does require a petition containing thirteen categories of information, personal service that is jurisdictional if botched, a medical evaluation meeting four statutory content requirements, and proof of incapacity by clear and convincing evidence at a hearing where the respondent is treated as having denied everything. A court-appointed guardian ad litem will investigate the petition, and the respondent may be appointed counsel. Filing without a lawyer is legal and is not simple.

What is the difference between a guardian and a conservator in Virginia?

A guardian is responsible for personal affairs: support, care, health, safety, habilitation, education, therapeutic treatment, and residence. A conservator is responsible for the estate and financial affairs. The court may appoint one person to both roles or different people to each, and it may appoint one without the other. The powers are granted separately, so a guardian with no conservatorship has no authority over money and a conservator with no guardianship has no authority over medical care or where the person lives.

Can a guardianship be reversed in Virginia?

Yes. Under § 64.2-2012 the incapacitated person, the guardian or conservator, or any other person may petition to restore capacity, modify the appointment, or terminate it, and the court may act on its own motion. Restoration requires proof by a preponderance of the evidence that the person has substantially regained the ability to care for their person or manage their estate. If the person is not represented by counsel, they can start the process by sending an informal written communication to the court with no filing fee, and the appointment order is required to print the court’s address so they know where to send it.

Does a power of attorney prevent a guardianship in Virginia?

Often, yes. Section 64.2-2009(D) provides that a conservator need not be appointed for a person who has an agent under a durable power of attorney, unless the court determines the agent is not acting in the principal’s best interests or a decision is needed outside what the document covers, and that a guardian need not be appointed for a person with an agent under a valid advance directive, subject to the same two exceptions. Section 64.2-2019(B) goes further after appointment: a guardian’s authority does not extend to decisions already addressed in a valid advance directive or durable power of attorney the person executed earlier.

Who pays for a guardianship proceeding in Virginia?

The petitioner pays the $10 filing fee under § 17.1-275(A)(42) plus costs, though service fees and court costs may be waived on a sworn allegation that the respondent’s estate is unavailable or insufficient. If a guardian or conservator is appointed and the court finds the petition was brought in good faith and for the respondent’s benefit, the court shall order the petitioner reimbursed from the estate for all reasonable costs and fees where the estate can cover them. If the court finds the petition was brought in bad faith or not for the respondent’s benefit, it may require the petitioner to pay the respondent’s costs and fees. Where the adult is indigent, the Commonwealth bears the fees and costs the court fixes or taxes.

Can a person under guardianship in Virginia still vote?

A finding of incapacity does not by itself disqualify anyone from voting. Under § 64.2-2009.2, effective July 1, 2026, a person is disqualified for lack of capacity only if a court makes a specific finding by clear and convincing evidence that the person lacks the capacity to understand the act of voting, and the order must state the findings of fact and conclusions of law supporting it. The court may not base that finding on the guardian ad litem’s determination alone without a showing that reasonable accommodation was provided, and may not consider reading or writing tests, educational achievement, or moral character. Anyone disqualified before July 1, 2026 may petition for review, and if they do not, the review happens automatically at the next periodic review hearing.

Can a guardian stop family members from visiting in Virginia?

Only within limits, and only with paperwork. Section 64.2-2019(E) bars a guardian from restricting the person’s ability to communicate with, visit, or interact with anyone they have an established relationship with, unless the restriction is reasonable to prevent physical, mental, or emotional harm or financial exploitation, and only after considering the person’s expressed wishes. Section 64.2-2019.1 requires the restriction to be the least restrictive means possible and requires written notice to the restricted person on a Supreme Court form stating the terms, the reasons, and how to challenge it, with copies to the person, the local department of social services, the appointing court, and any facility where the person lives. A guardian who imposes a restriction in bad faith can be ordered to pay the restricted person’s attorney fees from personal funds.

Where to start

Guardianship exists because sometimes there is no other way to keep someone safe. It is also the most intrusive tool in Virginia’s civil law, and the statute is built to make sure it is used at the right size, for the right reasons, with the right person holding it. If you are trying to decide whether your family is at that point, the productive first step is a conversation about what decisions are actually going stale and who, if anyone, already has authority to make them. My guardianship practice is described on the guardianships practice page, and you can reach the office at (276) 773-6102.