Perhaps; it depends on whether the court would grant a request made by you to be appointed as your parent’s guardian and/or conservator. Poor judgment alone does not make someone a protected person. Any interested individual can petition the court to appoint a guardian or conservator for an alleged protected person.
The law clearly states that no person can have a guardian or conservator appointed to manage her affairs without first being given notice, having an attorney to represent him or her, and having an opportunity for a hearing. The court will appoint an attorney to represent your parent. You may choose to have an attorney represent you, but your attorney will not be appointed nor paid for by the court. If after due process the court determines your parent needs a guardian and/or conservator, the court will then make a determination of who would be most appropriate to appoint in those roles.
Any adult can be a guardian or conservator (or both), as long as the court determines that person to be suitable and the person is not employed by, or connected to, any public agency that gives help to the protected person. In theory, the protected person can choose who he wants to be his guardian or conservator, but the individual may be unable to do so because of his incapacity. The court may appoint co-guardians or co-conservators if it is in the best interest of the protected person.
Conservators and guardians are required to fulfill specific duties under the law, including filing personal and financial reports with the court on a regular basis. A free training detailing these duties and answering various questions about guardianship and conservatorship is available on the West Virginia Supreme Court of Appeals website.
In order for you to be your parent’s guardian, the court would first have to determine whether your parent would likely qualify as a protected person under the law. A protected person is a mentally impaired adult, eighteen years or older, who is unable to understand or respond to people, events, and environments to such an extent that the person cannot:
•take care of himself/herself without help, or
•manage property or finances or provide for his/her support (or the support of dependents) without help.
If the court determines that your parent falls into one or both of these categories, he/she will be deemed a protected person. The court will not appoint a guardian or conservator merely because you or someone else disagrees with certain choices your parent has made about his/her finances or health care; there must be clear and convincing proof that your parent is unable to understand his/her surroundings and function without assistance.
In order to file for guardianship, the first thing you must do is file a petition with the clerk of the circuit court. You must file in the county where your parent is living. There will be a filing fee which can be waived if you cannot afford to pay it. The required forms can be downloaded from the WV Supreme Court of Appeals website or can be provided for a copy fee by the county Circuit Clerk. You will have to give some or all of the following information:
•your parent’s name, date of birth, place of residence or
location, and post office address;
•the names and addresses of the nearest known living relatives;
•the name and address of the individual or health care facility that is responsible for your parent’s care and a detailed list of all the things they do for his/her benefit;
•the name and address of anyone who has power of attorney for your parent, copies of these documents, and a detailed list of all the things they do for your parent’s benefit;
•the name, address, and phone number of your parent’s attorney, if he/she has one;
•whether your parent can attend a hearing, and if not, the reasons why he/she cannot attend;
•the extent of the guardianship/conservatorship requested, the reasons why, and the specific areas of protection or assistance requested;
•your name, address, age, occupation, and criminal history; or
•the name, address, relationship, and status of the guardian selected by your parent if it is someone other than you.
You will also have to include a report from a licensed physician or psychologist with the petition. The report must contain all of the following:
•a description of your parent’s incapacity, including specific limitations;
•an evaluation of your parent’s mental and physical condition;
•a description of the health care services being provided for your parent, the reasons for these services, a recommendation of the most suitable living arrangement, and if appropriate, treatment and rehabilitation plans;
•an opinion about whether an appointment of a guardian is necessary;
•if your parent cannot attend a hearing, an opinion as to
why attendance would be detrimental to his/her health;
•if your parent can attend a hearing, an explanation of
any medication(s) he/she will be on that will affect him/her at the hearing;
•the signature of the physician who wrote the report; and
•the date of the report.
You will also have to send a financial statement with the petition. The statement must include your parent’s Social Security number and an approximate value of his/her property, assets, and income.
After you file the petition, the circuit clerk will set a date for the hearing. The hearing will be held within 60 days of the time you file the petition. The clerk will give you a notice of hearing. You are required to notify your parent and everyone whose address is on the petition. You must send these people a copy of the notice of hearing and the petition by certified mail with a return receipt requested no later than 14 days before the hearing. The notice must also contain a brief statement regarding the purpose for the proceedings and must contain the following notice in large print:
POSSIBLE CONSEQUENCES OF A COURT FINDING
THAT YOU ARE INCAPACITATED
At the hearing you may lose many of your rights. A guardian may be appointed to make personal decisions for you. A conservator may be appointed to make decisions concerning your property and finances. The appointment may affect control of how you spend your money, how your property is managed and controlled, who makes your medical decisions, where you live, whether you are allowed to vote and other important rights.
The court will then appoint an attorney to participate in the proceeding. The attorney will represent your parent–not you. At the hearing, the court will decide whether your parent needs a guardian and, if so, whether you will be appointed as his/her guardian.
If you are appointed guardian, then you must sign an oath promising to faithfully perform the duties of guardianship. You must also complete educational training to learn more about your duties. The education program is developed by the secretary of health and human resources and may consist of written materials and/or audiotapes or videotapes. A tutorial for guardians can be found at http://www.courtswv.gov/public-resources/guardian-conservator/index.html for individuals wanting to view the process. Finally, the court will decide whether it is necessary that you post a bond. You must also send the order of appointment to your parent within 14 days along with a brief statement in large print of your parent’s rights to seek an appeal for modification or termination.
Anyone who wants to terminate the guardianship or conservatorship may petition the court. Both guardianship and conservatorship automatically terminate when your parent dies.
For more information, see: W. Va. Code § 39B-1-108 (2015); West Virginia Guardianship and Conservatorship Act, W. Va. Code §§ 44A-1-1 to -14 (2015); West Virginia Guardianship and Conservatorship Act, W. Va. Code §§ 44A-2-1 to -13 (2015); State ex rel. Shamblin v. Collier, 191 W.Va. 349, 445 S.E.2d 736 (1994).