What is a guardian?

In DC, 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 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”. Understanding what is a guardianship in the District of Columbia is essential to the success of your estate.

In many states, a guardian may also apply 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 is 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 the petitioner and can be the incapacitated individual himself or herself or any other person interested in the incapacitated individual’s welfare. You must give the petition to the subject of the petition. This is the person the petition claims is “incapacitated”). Furthermore, you must complete this 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 parties of the guardianship proceeding. This includes the date of the hearing. 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.

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 “healthcare guardian”. You can appoint a health-care guardian for up to two consecutive 90 days periods. This type of guardian, however, may gain legal standing after the court certifies an individual as incapacitated. Furthermore, the courts cannot authorize anyone else who is willing, or able to serve.

The second type of temporary guardian is a “provisional guardian”. You appoint this type of guardian if the individual currently serving as the individual’s guardian is not performing their duties. Furthermore, immediate action must also be necessary to preserve the incapacitated individual’s welfare. The provisional guardian’s 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 individual that conforms as closely as possible to what they would choose if they were not experiencing incapacity. 7. include the ward’s opinion to the extent they can give one in any decision made by the guardian. 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
a 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 can receive reasonable compensation under the statute. However, the compensation must receive approval from the local courts before disbursement.

Contact our DC Law Office for More Information

Finally, for more information on what is a guardianship in the District of Columbia, please contact Antonoplos & Associates at 202-803-5676. You can also directly schedule a consultation with one of our attorneys.