Probate Code
Each state's laws set out detailed procedures which must be followed to have a guardian or conservator appointed. Although details vary, typically the process requires notice to the proposed ward and other interested parties, evaluation of the proposed ward and evidence supporting the request, a hearing, and a decision by a jury or judge.
Initiating an Action – Filing a Petition:
A petition for the appointment of a guardian or conservator must be filed with the clerk of the circuit court in the county in which the alleged protected person resides or if an alleged protected person has been admitted to a health care or correctional facility, in the county in which that facility is located. A petition for the appointment of a conservator for a missing person shall be filed with the clerk of the circuit court in the county in which the missing person last resided. The circuit clerk is not required to accept for filing a petition that is not administratively complete.
Notice of Hearing:
Upon the filing of the petition and evaluation report, the court shall promptly issue a notice fixing the date, hour, and location for a hearing to take place within sixty days. The alleged protected person shall be personally served with the notice, a copy of the petition, and the evaluation report not less than fourteen days before the hearing. The person may not waive notice and a failure to properly notify the person shall be jurisdictional. The notice shall include a brief statement in a large print of the purpose of the proceedings and shall inform the alleged protected person of the right to appear at the hearing, the right to an attorney, and the right to object to the proposed appointment. Example notice: " 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."
Examinations, Evaluations, and Interviews:
The petition will include a report by a licensed physician or psychologist evaluating the condition of the alleged protected person. The court, for good cause shown, may grant leave to file the petition without an evaluation report. If such leave is granted, the court will order the appropriate assessments or examinations and shall order that a report be prepared and filed with the court. The court may hear the petition for the appointment of a guardian or conservator or may designate the mental hygiene commissioner in the circuit to serve as the trier of fact at the hearing on the petition provided, that the court will be the trier of fact at the hearing on a petition for the appointment of a conservator for a missing person. If a mental hygiene commissioner is appointed, a mental hygiene commitment proceeding may not be held simultaneously with a proceeding for the appointment of a guardian or conservator. The designated mental hygiene commissioner shall submit written findings of fact and recommendations to the court upon the conclusion of the hearing. The court may accept or reject the recommendations of the mental hygiene commissioner. Only the court may enter an order appointing a guardian or conservator.
Adjudication and Disposition:
The court will make specific findings of fact and conclusions of law in support of any orders entered.
W. Va. Code § 44A-2-2
W. Va. Code § 44A-5-1 through W. Va. Code § 44A-5-9