Court-Appointed Guardianship for the Elderly: The Final Frontier

One of the most difficult things to watch is the mental and/or physical decline of an aging loved one.  As we get older, we tend to become more sensitive to the needs of our parents, grandparents or other relatives and close friends.  What is, perhaps, most difficult is when our loved ones are in denial about their ability to handle their affairs. 

Let’s say you stop by to visit your beloved aunt one day after work and you smell the stench of four-week old trash and see open containers of food laying all over the house.  You inquire about your aunt’s well-being and ask if you can stay to help clean up.  She says that she is fine.  You then see a stack of mail on the table and sort through it to find notices that she is behind on her property taxes.  You feel bad for going through your aunt’s mail and you know that asking her questions gets you nowhere so you leave worried and not knowing what to do. 

Several questions run through your mind:  If you take matters into your own hands will she resent you?  What will other family members think?  What will be required of you if you do intervene?  What if she loses her home because she forgets to pay the taxes or mortgage? These are all realistic considerations when deciding how to deal with the end-of-life needs of your loved ones.  If you think your loved one cannot handle their daily needs, and it is questionable whether they are competent to sign power of attorney or other estate planning documents, you may be able to petition the court to appoint a guardian or conservator to help administer your loved ones affairs. 

What is the difference between a guardian and a conservator?

A guardian is a person who has been appointed by a judge to manage the affairs of an incompetent or otherwise incapacitated adult (referred to as a “ward) or to take care of a minor child until the child becomes 18. A conservator, also appointed by a judge, is charged with protecting and managing the financial affairs of a prospective ward’s daily life due to physical or mental limitations or old age.

In the District of Columbia, the probate court has online forms for the petition and once they are completed and have been reviewed, approved and filed, the court will set an initial hearing between 30-45 days from the date of the filing.  The process can be daunting for a lay person and seeking the advice of counsel is strongly recommended. The petition will then go to the judge who will appoint counsel to the subject and appoint a “visitor” to go to the ward’s home or residence prior to the hearing.

At the hearing, the petitioner has the burden of proving by clear and convincing evidence that the ward is “incapacitated” as defined by DC law.  The petitioner can prove incapacity by attaching medical evidence to the petition or presenting medical evidence or testimony in Court at the hearing that will be scheduled after the petition is filed. Unless the subject is found by the Court to be incapacitated, no guardian or conservator will be appointed, so a petitioner should provide as much proof of incapacity as possible.

The petitioner must appear at the hearing with any witnesses that the petitioner wishes to present and should bring the form titled Findings of Fact, Conclusions of Law and Order. Counsel for the subject will appear, usually with the subject. If a visitor, examiner, or guardian ad litem has been appointed, that person must also appear at the hearing. The Court will hear the evidence presented and ordinarily will decide at the hearing whether a guardian or conservator will be appointed, who that person will be, whether bond is required, and, if so, the amount of the bond.  The wishes of the ward are taken into consideration but at times the Court will appoint a disinterested person depending on the circumstances of each case.  Guardianship and conservatorship terminates upon the death of the ward or if it is deemed that they are no longer incapacitated.

If you have any questions on guardianship or other end-of-life issues, do not hesitate to contact me at yford@new.fordlawpros.com or (202) 507-6313.

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