Notice of Hearing
Filing a Guardianship/Conservatorship case requires special types of legal service of papers for the hearing to be held. The law requires the hearing to be held within sixty days of the date of filing. The court will issue a notice that fixes the date, hour, and location for a hearing after both the petition for appointment of a guardian or conservator, and a physician or psychologist evaluation report are filed. The court cannot set a hearing until both the petition and evaluation report are filed.
The person for whom a guardian or conservator is being sought (called the alleged protected person) must be personally served with the notice of hearing and the petition and the evaluation report not less than fourteen days prior to the hearing. Personal service cannot be waived by the alleged protected person, and failure to serve is jurisdictional; in other words the case cannot go forward without the required personal service.
The person filing the petition for appointment (called the petitioner) is required to mail a copy of the notice of hearing issued by the court with a copy of the petition to all individuals 7 years of age or older whose names and post office addresses appear in the petition. Those documents must be sent by certified mail, return receipt requested, at least fourteen days prior to the hearing. In the case of a missing person, a copy of the petition must be mailed by certified mail, return receipt requested, to the last known address of the missing person.
The petitioner must also file in the office of the circuit clerk a copy of the certified mail return receipts either on or before the date of the hearing.
It is the responsibility of the petitioner to obtain proper service and file the documentation with the circuit clerk. If the petitioner fails to do so, the hearing cannot take place and will be rescheduled, with the same service required for the rescheduled hearing. The practical effect of failure to obtain proper service is that all the family, witnesses, or others who may be arriving for the hearing, having taken off work or traveled distances to be present, will find the hearing cannot take place, and they will have to return when the hearing is rescheduled. It is therefore recommended that proper service be obtained promptly by the petitioner, well before the deadline dates.
More information on the service of the notice of hearing can be found in the West Virginia Code Chapter 44A-2-6. The West Virginia Code is available at the State Law Library at the State Capitol in Charleston, East Wing, Third Floor, or online at the West Virginia Legislature website, under the tab “WV Code."