Guardianships and Conservatorships for Adults in the District
of Columbia
IMPORTANT TERMS:
Conservator: an individual or organization
appointed by the court to manage the ward's money and
other assets.
Estate: the property (real estate, personal
property, and money) of a person for whom a guardian and/or
conservator has been appointed.
Guardian: an individual or organization
appointed by the court to make personal decisions for the
ward.
Incapacitated Individual: an adult whose
ability to receive and evaluate information effectively or
to communicate decisions is impaired to such an extent that
he or she lacks the capacity to manage all or some of his
or her financial resources, or to meet all or some essential
requirements of his or her physical health, safety, habilitation,
or therapeutic needs without court-ordered assistance or appointment
of a permanent guardian or conservator.
Petition: a written request for some action
or authorization by the court, with copies provided to other
persons involved in the matter.
Subject: a person for whom a guardianship
and/or conservatorship petition has been filed, but who has
not yet been declared incapacitated by the court.
Ward: a person who has been declared incapacitated
by the court, and for whom a guardian or conservator has been
appointed.
FORMS
Petitions, court forms and additional information are available
at the Probate Division of D.C. Superior Court, located in
Room 5000 on the 5th floor at 500 Indiana Avenue, N.W. Hours
of operation are Monday through Friday, 8:30 a.m. to 5:00
p.m. The telephone number for information about guardianships
and conservatorships is (202) 879-7820. The forms are also
downloadable from this site by clicking on Intervention
Forms.
FREQUENTLY ASKED QUESTIONS:
1) When may someone need a guardian or conservator?
The following is an example of a situation in which
you may need to ask the court to appoint a guardian or conservator
for an adult who needs help in making personal or financial
decisions.
Mrs. Newton is an elderly resident of Washington who lives
in her own home. She has become forgetful and does not remember
to pay bills. She does not eat regularly and is unable to
care for herself and her home. For example, she often leaves
electrical appliances on for extended periods after use, creating
a hazardous living environment. Mrs. Newton's friend
fears that Mrs. Newton can no longer live by herself, but
does not believe she would want to live in a nursing home.
2) What is a guardian?
A guardian is a person appointed by the court to
make personal welfare decisions for an incapacitated individual,
called a ward. The guardian is responsible for the care, custody
and control of the ward, within the conditions or limits the
court may impose. Examples of personal decisions the guardian
may need to make include choosing where the ward will live
and deciding whether the ward will receive proposed medical
treatment. However, the law recognizes certain deeply personal
decisions that the guardian alone cannot make for the ward;
a judge must decide these after a hearing. They include decisions
concerning marriage, reproduction, organ transplantation and
withdrawal of artificial life support systems. Guardians may
manage a small sum of money on the ward's behalf and
in the ward's interest, such as a public benefit check.
If the ward has more than a small income and is unable to
manage it for his or her own benefit, then a conservator may
need to be appointed.
3) What is a conservator?
A conservator is a person appointed by the court
to manage the property of a person found to be incapacitated
(or has disappeared, been detained by a foreign country, or
held hostage). Once appointed, the conservator receives and
expends the ward's money and other assets, but only
for the benefit of the ward and the ward's dependents.
A conservator generally must post a bond to protect the ward's
estate against mismanagement or abuse. The cost of the bond
is based on a percentage of the value of the ward's
estate, and is reimbursable from the ward's funds. The
conservator must develop a plan that specifies what services
are necessary to manage the ward's assets, how these
services will be provided, and how decision-making will be
shared with the ward and others as appropriate.
4) What are guardians and conservators responsible
for?
In general, guardians and conservators are responsible
for action in the ward's best interest to make arrangements
for the necessities of life (such as food, shelter, clothing,
and medical treatment). The guardian or conservator uses the
ward's resources for these purposes, and must keep them
separate from his or her own funds. Guardians must make a
report to the court every six months regarding the health
and welfare of the ward, and any of the ward's resources
that have been under the guardian's control. Conservators
must make an inventory and conservatorship plan within 60
days of the date they are appointed, and must file an accounting
once a year. The Probate Division has materials to assist
in preparing these reports. Guardians and conservators are
entitled to reasonable compensation for their services, and
may apply for court approval of payment from the ward's
estate or a public fund.
5) How long does it take to get a guardian or conservator
appointed by the Court?
In normal circumstances it takes approximately 45
days from the time a completed petition is filed in the Probate
Division to the time a hearing is held by the court. If after
reviewing the petition the court finds that a guardian and/or
conservator should be appointed, letters of appointment will
be issued in approximately three days. Letters of conservatorship
may issue within 24 hours of the filing of a bond.
6) What happens in the case of a life-threatening
emergency?
In an emergency or life-threatening situation, a
temporary guardian may be appointed more quickly and without
the normal notice and hearing procedures. A temporary guardianship
expires after 15 days. However, if the ward or other interested
person objects to appointment of a temporary guardian, a hearing
must be held within 48 hours of request, and the ward has
the right to a lawyer.
A temporary guardianship might be necessary to make a health-care
decision; however, if there is a present emergency, consent
to medical treatment is implied by law, and no guardian is
required. Also, if there are family members available to make
health-care decisions, they may be authorized to do so under
the D.C. Health Care Decisions Act.
7) Do all guardians and conservators have the same
powers?
No. The D.C. Code sets forth general the powers of
guardians and conservators. A copy of the list of powers may
be obtained in the Probate Division. However, the court may
grant a limited guardianship or conservatorship; in that case,
the guardian or conservator has only the powers set forth
in the order of appointment, and the ward retains the right
to make all other decisions and control all other property.
8) How is a guardianship or conservatorship established?
Any person interested in the welfare of an allegedly
incapacitated adult may file a Petition for General Proceeding
(II-A) in Superior Court requesting court appointment of a
general or limited guardian or conservator, or both. A copy
of the petition and notice of the date of a court hearing
must be provided to the allegedly incapacitated person (referred
to as the subject) in person. After the petition is filed,
the court will appoint a lawyer to represent the subject.
This lawyer's role is to advocate for the wishes of
the subject and to be sure that the subject's rights
are respected.
The person filing the petition (referred to as the petitioner)
is not required to have legal representation, but if desired,
the petitioner must obtain his or her own lawyer. Before appointing
a guardian, the court must be convinced that the subject is
too impaired to make or communicate personal decisions for
his or her own welfare. Before appointing a conservator, the
court must be convinced that the subject is too impaired to
manage his or her financial resources. To ascertain the facts
in each case, the court may appoint an examiner and/or a visitor.
The examiner is generally a professional such as a psychiatrist,
gerontologist or qualified mental retardation professional,
who will evaluate the subject's physical and emotional
condition. The examiner must submit a written report to the
court detailing his or her findings, and providing a diagnosis.
If a doctor's report is filed with the original petition,
it may eliminate the need to appoint an examiner.
The visitor will most likely be a social worker or a lawyer,
who will interview the subject, the petitioner, and anyone
nominated in the petition to serve as guardian or conservator.
The visitor must also file a written report of his or findings
to the court, recommending whether a guardianship is necessary,
whether it should be general or limited, and who should be
appointed guardian or conservator.
After the reports have been filed, the court will hold a
hearing. The subject must be at the hearing unless there is
a good reason for his or her absence. The subject has the
right to object to the petition, to present evidence and to
question witnesses. In order to appoint a guardian or conservator,
the court must find the person incapacitated by clear and
convincing evidence.
9) Who can be appointed guardian or conservator?
Although any person or organization (such as a social
service agency) can be designed guardian or conservator, the
law lists priorities of nominees for appointment. First to
be considered is anyone designated in a power of attorney
or other writing. Next are a spouse, then adult children,
and then other relatives. If the best interest of the ward
so dictates, anyone on the priority list may be passed over,
or the court may appoint someone not on the list.
10) What are the costs involved?
There are no filing fees when petitioning for appointment
of a guardian. There is a $45.00 filing fee to petition for
appointment of a conservator. If appointed with a bond, the
conservator must pay a bond fee. There may also be a filing
fee for the annual conservator's account, based on the
value of the ward's estate. Filing fees and bond fees
may be reimbursed from the ward's estate, with court
approval. Attorneys' fees, and the cost of the examiner
and visitor may be reimbursed from the ward's estate
or from a court fund established for that purpose, with court
approval.
11) Can a guardianship or conservatorship be terminated?
The ward or any person interested in the ward's
welfare may petition the court for a hearing to determine
whether the guardianship or conservatorship should be terminated.
The procedures for this determination are the same for the
initial petition for appointment, and the ward has a right
to a lawyer, an examination, and to be present at the hearing.
If the ward dies, the powers of the guardian and conservator
end. The court must be notified promptly of the death of a
ward, and the guardian or conservator will be required to
make a final report and/or account before his or her responsibility
is discharged.
A guardian or conservator who misuses his or her authority
may be removed by the court, and may be liable to the ward
for damages. A new guardian or conservator will be appointed
to take the place of the person removed.
12) Where can I go for help?
The D.C. Office on Aging Information and Assistance
Unit at (202) 724-5626 can help you find resources to assist
an elderly person who is a risk, or refer to you to a social
service agency that can assess the needs for a guardianship
or conservatorship. Guardians and conservators may call the
American Association of Retired Persons at (202) 434-2277
for additional resources to assist them in carrying out their
responsibilities. If you are concerned about a mentally retarded
adult, you may call the D.C. Department of Human Services,
Bureau of Case Management, at (202) 673-7657 for assistance
and referral, or Adult Protective Services at (202) 541-3916.
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