By definition of Virginia law a minor is a person who is under the age of eighteen years.
There are 3 types of Guardians:
1. A Guardian of the Person is an individual who is appointed by the Court to be legally responsible for the personal affairs of a Minor. The Guardian of the Person is responsible for the health and well-being of the Minor and assumes parental rights for the Minor child. It is imperative that one seek legal advice from an attorney licensed in Virginia when seeking to be appointed Guardian of the Person of A Minor. The Court is the proper venue by which an individual may be appointed Guardian of the Person of A Minor.
2. A Guardian of the Estate of A Minor is an individual who is appointed by the Court or Clerk to legally manage the estate (both personal and real property) of a minor until the minor reaches the age of eighteen years.
3. A Testamentary Guardian is defined in Va. Code § 64.2-2000. Every parent may, by his Last Will and Testament, appoint (i) a guardian of the person for his minor child and (ii) a Guardian for the estate bequeathed by the parent to his minor child for such time during the child’s infancy as the parent shall direct.
What is the difference between a Guardian for a Minor and Physical Custody?
A distinction should be made between seeking guardianship for a minor, which is done in Circuit Court, and physical custody of a minor, which is done in Juvenile and Domestic Relations (J&DR) Court. When contacting J&DR, it is important that you refer to your desire to obtain physical custody of a minor and not guardianship.
For questions regarding "custody" of a child or "guardianship" of a child to handle the child's money, an attorney should be contacted. The Civil Section of the Circuit Court Clerk's Office handles cases when a child or adult is incapacitated. On rare occasions, the Circuit Court handles guardianship cases when the child is not incapacitated. The Circuit Court may handle custody cases outside of a divorce depending on the divorce decree. Juvenile and Domestic Relations Court hears most custody cases that are not part of the divorce proceedings. Again, we strongly suggest that an attorney licensed in Virginia be contacted.
What about bond?
Normally, the qualification of a guardian of a minor’s estate is before the Clerk of Circuit Court unless there are circumstances that would require an order from the Court appointing a guardian. Before securing an appointment to qualify as guardian, the person seeking appointment must secure surety on the bond that they must execute with the Commonwealth with a bonding company through a bonding agent. Please review the information on Bond/Surety in bondsurety. Surety may be waived under the conditions set forth in VA Code Sec 64.2-1411 or, in the case of a testamentary guardian whether the testator’s Will waives surety. However the Court or Clerk has discretion at any time to require surety on a guardian’s bond.
Qualification fees in accordance with Virginia Code § 17.1-275 (1) (2) (3)
|Estates of $5,000.00 or less||$0|
|Estates not exceeding $50,000.00||$20.00|
|Estates not exceeding $100,000.00||$25.00|
|Estates exceeding $100,000.00||$30.00|
* Only applies to Clerk's qualification of guardian of a minor's estate.
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