2006 Code of Virginia § 37.2-1012 - Petition for restoration, modification or termination; effects

37.2-1012. Petition for restoration, modification or termination; effects.

A. Upon petition by the incapacitated person, the guardian or conservator, orany other person or upon motion of the court, the court may declare theincapacitated person restored to capacity; modify the type of appointment orthe areas of protection, management, or assistance previously granted orrequire a new bond; terminate the guardianship or conservatorship; orderremoval of the guardian or conservator as provided in 26-3; or order otherappropriate relief. The fee for filing the petition shall be as provided insubdivision A 43 of 17.1-275.

B. In the case of a petition for modification to expand the scope of aguardianship or conservatorship, the incapacitated person shall be entitledto a jury, upon request. Notice of the hearing and a copy of the petitionshall be personally served on the incapacitated person and mailed to otherpersons entitled to notice pursuant to 37.2-1004. The court shall appoint aguardian ad litem for the incapacitated person and may appoint one or morelicensed physicians or psychologists or licensed professionals skilled in theassessment and treatment of the physical or mental conditions of theincapacitated person, as alleged in the petition, to conduct an evaluation.Upon the filing of any other such petition or upon the motion of the courtand after reasonable notice to the incapacitated person, any guardian orconservator, any attorney of record, any person entitled to notice of thefiling of an original petition as provided in 37.2-1004, and any otherperson or entity as the court may require, the court shall hold a hearing.

C. Revocation, modification, or termination may be ordered upon a findingthat it is in the best interests of the incapacitated person and that:

1. The incapacitated person is no longer in need of the assistance orprotection of a guardian or conservator;

2. The extent of protection, management, or assistance previously granted iseither excessive or insufficient considering the current need therefor;

3. The incapacitated person's understanding or capacity to manage the estateand financial affairs or to provide for his health, care, or safety has sochanged as to warrant such action; or

4. Circumstances are such that the guardianship or conservatorship is nolonger necessary or is insufficient.

D. If, on the basis of evidence offered at the hearing, the court finds by apreponderance of the evidence that the incapacitated person has, in the caseof a guardianship, substantially regained his ability to care for his personor, in the case of a conservatorship, to manage and handle his estate, itshall declare the person restored to capacity and discharge the guardian orconservator.

In the case of a petition for modification of a guardianship orconservatorship, if the court finds by a preponderance of the evidence thatit is in the best interests of the incapacitated person to limit or reducethe powers of the guardian or conservator, it shall so order; if the courtfinds by clear and convincing evidence that it is in the best interests ofthe incapacitated person to increase or expand the powers of the guardian orconservator, it shall so order.

The court may order a new bond or other appropriate relief upon finding by apreponderance of the evidence that the guardian or conservator is not actingin the best interests of the incapacitated person or of the estate.

E. The powers of a guardian or conservator shall terminate upon the death,resignation, or removal of the guardian or conservator or upon thetermination of the guardianship or conservatorship.

A guardianship or conservatorship shall terminate upon the death of theincapacitated person or, if ordered by the court, following a hearing on thepetition of any interested person.

F. The court may allow reasonable compensation from the estate of theincapacitated person to any guardian ad litem, attorney, or evaluatorappointed pursuant to this section. Any compensation allowed shall be taxedas costs of the proceeding.

(1997, c. 921, 37.1-134.16; 2005, c. 716.)