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Disability Rights of West Virginia

Guardianship and/or Conservatorship

Article by Shawna White, DRWV Staff Attorney

A common concern among family members and loved ones who are guardians and/or conservators for a person with a disability is “who will take over if something happens to me”.  There is no simple answer.  Each situation is unique but planning for death or incapacity is one of the most important responsibilities of a guardian and/or conservator.  All too often an individual with a disability experiences avoidable issues due to a lack of future planning.  Planning for the death or incapacity of a guardian and/or conservator involves multiple factors.  The following information outlines the initial steps to ensure the appointment of an appropriate successor to the current guardian and/or conservator. 


Each circumstance is unique so you will need to consult a qualified expert for guidance.    When dealing with any issue that involves legal matters, you should  consult with a licensed attorney who is experienced and knowledgeable in guardianship and conservatorship laws and estate planning.  Guardianship and conservatorship laws vary dramatically from state to state.  This article only addresses these matters under West Virginia law.

Guardianship of a Minor Child

Children under the age of 18 must have a legal guardian.(1)  A biological parent, adopted parent or person who has been granted custody of a child via court order is the legal guardian of a minor child.  A legal guardian can name the person they wish to assume guardianship in the event of their death, incapacity, or debilitation.  This person is referred to as a ”standby guardian.” The circumstances under which the named individual will assume guardianship of the minor child is referred to as a “triggering event.”

 To designate a standby guardian, the current guardian must execute a written document that contains, among other things, the name, address and birthdate of the child affected, the triggering event and the name and address of the standby guardian.  The document can also name an alternative standby guardian. The document must be signed by the current guardian(2) and witnessed by two adults. Once the document is properly executed, it must be delivered to the person named as standby guardian.  When a triggering event occurs, the named standby guardian will immediately assume the role of guardian.  However, the authority is only valid for 30 days.  The standby guardian must petition the court within the 30-day window to maintain the designation of legal guardian.


Once a child turns 18, the biological parents, adoptive parents or those granted custody of a minor no longer have the legal authority to act as a guardian for the child.  To maintain the role of legal guardian, a court must issue an order appointing them as legal guardian.  To avoid a lapse in representation, the law allows a third party to file a petition for appointment of a guardian when the child is 17 years and 10 months old.

Guardianship of an Adult

The law assumes that all individuals are competent to make their own decisions regarding all aspects of their life upon their 18th birthday.  When an adult lacks the ability to make decisions about health, safety or finances, a parent, loved one or any interested third party may file a petition requesting that the court appoint a guardian and/or conservator to make decisions for them. 

If you or someone else is considering filing a petition to have a guardian or conservator appointed for a family member or loved one, the best practice is to request that the court appoint a successor guardian in the initial petition.  A successor guardian is an individual appointed by the court to take over all powers and duties of a guardian or conservator if the initial guardianship is terminated for any reason.  If the successor is named in the original order, he or she immediately assumes the role if ordered by the court, however, the successor may need to complete any other requirements outlined in the order such as mandatory education or posting a bond.

If a guardian and/or conservator has already been appointed and no successor was named in the original order, any interested party may petition the court requesting a successor be named.  A guardian may nominate a successor in his or will, however, doing so does not grant legal authority.  The individual named as successor in a will must still file a petition for legal guardianship or conservatorship and obtain a valid court order.

(1) Under West Virginia law, there are circumstances where a minor can become “emancipated’ and does not require a legal guardian.  The complexities of this issue are outside the scope of this article. 


(2) If the parent is physically unable to sign the document, another adult may sign on their behalf.  The parent must expressly request the individual sign on their behalf and the signature must be done in the presence of the parent.

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