What is a guardian?
A guardian is a person appointed by the local court to make health care decisions for an incapacitated person. Under Section 21-2011(11) of the D.C. Code, an incapacitated individual is defined as “an adult whose ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that [they] lack the capacity to manage all of some of [their] financial resources or to meet all or some essential requirements for [their] physical health, safety, habilitation, or therapeutic needs without court-ordered assistance.” Section 13-705(b) of the Maryland code recognizes a similar meaning of incapacity. In Maryland, an individual is considered incapacitated if there is “clear and convincing evidence that a person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person, including provisions for health care.”
In many states, a guardian may also be appointed in other circumstances. For example, Maryland allows the court to appoint a guardian for a minor or someone suffering from serious drug addiction. This article, however, only focuses on guardianships for incapacitated individuals.
What if the process for appointing a guardian in the District of Columbia?
A guardianship is a formal legal proceeding, and an experienced elder law attorney proves beneficial for individuals going through this process.
The process to appoint a guardian begins when an individual petitions the local court to appoint a guardian. This person is called the petitioner and can be the incapacitated individual himself or herself or any other person interested in the incapacitated individual’s welfare. The petition must be served on the subject of the petition (the person the petition claims is “incapacitated”) within three days of when the petition was filed. The allegedly incapacitated individual or other interested parties may object to the guardianship proceeding. Objections are relatively rare, and usually, only occur in a small number of cases.
Next, the court sets a hearing on the issue of incapacity. The allegedly incapacitated individual must have legal representation at this proceeding. The petitioner must notify all interested parties of the guardianship proceeding when the hearing is going to be held. Anyone may apply for permission to participate in this proceeding, and the court determines whether or not to grant their request based on the best interests of the individual alleged to be incapacitated.
The court also takes additional measures to ensure an adequate determination is made regarding incapacity. Generally, the court appoints a qualified examiner and a visitor to meet with the allegedly incapacitated person before the hearing to assess the individual’s situation. The qualifications of the examiner and visitor may vary depending on the underlying causes of the alleged incapacity. The qualified examiner submits a written report to the court regarding the individual’s alleged incapacity and the visitor may testify at the hearing. Additionally, a finding of mental incapacity to make health-care decisions needs to be certified by two professionals that are certified to practice in the District of Columbia. Generally, this includes one physician and one qualified psychologist or psychiatrist. At the hearing, the Court will make a ruling on the guardianship petition.
Certification by the court that an individual is incapable of making his or her own health-care decisions is limited to that issue, and may not be used as find incompetency in another area.
If there is an immediate need to appoint a guardian due to an emergency, the court may appoint a temporary emergency guardian for a finite period of time. The authority of an emergency guardian never extends beyond twenty-one (21) days, and is only appointed if three requirements are met: 1) the allegedly incapacitated individual has no guardian, 2) a life-threatening or other situation involving emergency care exists, and 3) no individual with authority to act is available, capable and willing to act.
When this type of guardianship is at issue, the court moves extremely fast. The court quickly appoints counsel and a temporary guardian (if the prerequisites in the preceding paragraph are met) for the allegedly incapacitated individual, and provides notice to that person and all other interested parties. Any interested person may request a hearing within the twenty-one day period, and the hearing must be held within 48 hours. This type of guardianship is relatively rare, and only available if there is a true emergency.
Are there any other types of ‘temporary guardians’ in the District of Columbia?
Yes, there are two other types of temporary guardianships. The first is a “health-care guardian.” A health-care guardian may be appointed for up to two consecutive 90 days periods. This type of guardian, however, may only be appointed after the court certifies an individual as incapacitated and there is nobody else authorized, willing and able to serve.
The second type of temporary guardian is a “provisional guardian.” This type of guardian is appointed if the individual currently serving as the incapacitated individual’s guardian is not performing their duties and immediate action is needed to preserve the incapacitated individual’s welfare. The provisional guardians authority is not to exceed six months.
What is the scope of the guardian’s power in the District of Columbia?
The District of Columbia Code section 21-2407 sets forth the general powers and duties of a guardian. The code provision breaks the duties of guardians into mandatory duties and permissive duties.
Generally, under the code provision, a guardian must: 1) familiarize himself with the capacities, needs, and health of the incapacitated individual, 2) take reasonable care of the incapacitated individual’s personal effects and take measures necessary to protect the property of the ward, 3) use the incapacitated individual’s money to further their “support, care, habilitation, and treatment,” 4) conserve money for the future needs of the incapacitated individual, 5) submit a written report to the court when requested, 6) make decisions for the incapacitated individual that confirms as closely as possible to what they would choose if they were not incapacitated, 7) include the ward’s opinion to the extent they can give one in any decision made by the guardian, and 8) encourage the ward to act for themselves when they are able to do so.
Generally, the permissive duties allow the guardian to: 1) receive
payment intended for the support of the incapacitated individual, 2) establish where the incapacitated individual lives, 3) consent to medical care for the incapacitated individual without liability [unless the guardian does not act in good faith], 4) obtain medical records to apply for certain benefits the incapacitated individual is entitled to receive, 5) delegate responsibilities to the incapacitated individual and 6) institute proceedings on behalf of the incapacitated individual.
In the District of Columbia, the guardian is entitled to reasonable compensation under the statute. The compensation, however, needs to be approved by the local courts before it may be dispersed.
What is the role of an incapacitated individual to make his or her own decisions in the District of Columbia?
In the District of Columbia, a guardian is required to consider the incapacitated individual’s opinion in each decision they make. However, the individual’s wishes are not controlling and the guardian has the final say. Furthermore, the law provides that guardians should delegate responsibilities to incapacitated individuals to the extent possible.
Who will the court choose as an incapacitated individuals guardian in the District of Columbia?
The individual the court chooses to serve as guardian depends on the individual circumstances of each case. Section 21-2043(c) of the D.C. Code sets forth the order in which individuals are to be considered for the position: (1) the spouse or domestic partner of the incapacitated individual or someone nominated in the spouse or domestic partner’s valid will, (2) an adult child of the incapacitated individual or someone appointed in their valid will, (3) a parent of the incapacitated individual or someone appointed in their valid will, (4) a relative of the incapacitated individual that has resided with the incapacitated individual for at least six months prior to the petition, and (5) any other person. In determining whether an individual is appropriate, the court looks at whether there is a conflict of interest between the possible guardian and the incapacitated individual. Not all conflicts of interest are disqualifying.
When does a guardianship end in the District of Columbia?
A guardianship ends in the District of Columbia upon (1) the death of the guardian, (2) the death of the incapacitated individual, (3) a determination that the guardian is incapacitated, or (4) the resignation of the guardian, or (5) removal of the guardian. If an incapacitated individual regains capacity, they can petition the court to remove the guardian for good cause. A bill was recently introduced before the D.C. Council to amend this provision.
How can I avoid the court appointing a guardian in the District of Columbia?
The best way to circumvent this process is by executing a durable health care power of attorney. A Health Care Power of Attorney permits another person (an agent) to make health care decisions on behalf of the individual granting the instrument (the principal) when the principal becomes incapacitated and is no longer able to make important decisions regarding their health care. With this document, you have control over the individual the court appoints as your guardian.
The health care power of attorney, however, does not guarantee litigation will be avoided. Section 21-2043(b) of the D.C. Code provides that the court shall appoint a guardian according to the incapacitated individual’s durable power of attorney unless “lack of qualification or other good cause” dictates to the contrary. In other words, a Health Care Power of Attorney does not guarantee that a court-appointed guardianship will be avoided. If your nominated agents either refuse to act or are unable to act on your behalf, the default provisions provided by the law will be implemented.
With a properly Health Care Power of Attorney, guardianship proceedings may be eliminated. If you are thinking of setting up a health care power of attorney, you should make an appointment with an experienced estate-planning attorney. Antonoplos & Associates routinely advise clients on preparing these documents, and draft them according to each client’s unique situation.
Peter D. Antonoplos, Esq. is the managing partner at Antonoplos & Associates, Attorneys at Law. Mr. Antonoplos’ practice focuses on estate planning and real estate matters. Mr. Antonoplos is admitted to practice in the District of Columbia, New York, and Maryland. Mr. Antonoplos routinely lectures on real estate and probate law issues in Washington, DC and New York. Mr. Antonoplos lives in Northwest Washington, D.C. He is an avid chess player and motorcycle enthusiast. He may be reached at 202-803-5676 or Peter@AntonLegal.com.
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