legal guardianship of brother

i have a completely handicapped brother that is 21 years old. our mother is not able to take care of him anymore and does not have the means to place him in a facility to take care of him. he is not willing to go anywhere and i need to know what i have to do get "custody" in order to do what needs to be done. also note that he is physically abusive to my mother (bites, hits, pinches). live in va. would appreciate any advice.

[I AM ALWAYS LIABLE]

Originally posted by joebob
i have a completely handicapped brother that is 21 years old. our mother is not able to take care of him anymore and does not have the means to place him in a facility to take care of him. he is not willing to go anywhere and i need to know what i have to do get "custody" in order to do what needs to be done. also note that he is physically abusive to my mother (bites, hits, pinches). live in va. would appreciate any advice.

My response:

This is truly a very sad, and I'm sure, emotional situation for you.

While you didn't mention it, I will assume for the sake of this response that his mental age is much younger than his chronological age.

That being the case, your mother has lawful custody of your brother for the rest of his life, as opposed to a child who, despite their physical infirmities, grows up, turns 18, and becomes lawfully emancipated.

In this case, there are two choices:

1. Your mother can legally relinquish her parental rights in favor of you. You then become his legal guardian, and he lives with you. This procedure must be done through the courts.

- or -

2. Your mother refuses to relinquish her parental rights, and you file a Petition to have her parental rights terminated, and you further Petition the court for Conservatorship of your brother, along with physical custody.

In the latter scenario, the court will order your State Department of Health and Human Services to make an assessment of his current home life, along with an assessment of the current care he is receiving from Mom. Factors, such as her age, physical stamina, physical abilities, mental abilities, and a host of other criteria, will be used to determine whether or not your Mom is able to continue the care he needs, and whether your Petition can be granted "in his best interests". The same will occur for you, and your household; e.g., can you, and will you, make the necessary handicap improvements to your home to better care for your brother.

Your Petition will, by no means, be an easy one to win or obtain. Courts protect parent / child relationships jealously, and will do everything to maintain such a relationship.

Beyond the extreme emotional upheaval this will most assuredly cause, the Attorney's Fees and Costs will be immense. So, while this is a magnanimous and benevolent endeavor on your part, be prepared emotionally and financially to go through with this.

All the best to you, your mother, and your brother.

IAAL