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Guardianship: Caring for An Aging Loved One
Many of us are faced with the difficult realizations and decisions that come with seeing our parents and loved ones age and lose the ability to care for themselves. Although it is difficult to confront these issues it is important to consider the benefits of establishing a guardianship and conservatorship to ensure the wellbeing of loved ones. The judicial system may appoint a guardian to assist an incapacitated individual with managing quality of life or a conservator to assist with the management with financial assets.
Throughout the formal process of establishing a guardianship you will have to consider many delicate issues including what type of assistance your loved one needs and who is best able to provide it. Most often a concerned family member files a petition with the Court to be appointed guardian or conservator but it is also possible to seek the appointment of someone else. Whether or not you are the appropriate choice for guardian often depends on your ability to fulfill particular duties. Generally, guardianships require a commitment of time while conservatorships require strong financial skills.
“Is my loved one incapacitated?"
First, the petitioner must determine if the loved one is in fact incapacitated. Generally, an incapacitated person is defined as an adult who is unable to evaluate information or communicate decisions to a degree that impacts his or her ability to manage financial resources or maintain his or her physical wellbeing and safety. It is important to remember that incapacity does not hinge on the degree to which the individual’s decisions are responsible but on whether the person has the capacity to make responsible decisions. A showing of physical incapacity alone is not enough and a petitioner has the burden of establishing more than the loved one’s age or even chronic illness. Rather, the petitioner must show relatively diminished mental capacity.
“Do I have the appropriate evidence to demonstrate that my loved one has diminished capacity?"
Second, the process of judicial appointment begins with the submission of a petition to the Probate Division of the District of Columbia Superior Court. This provides you with the opportunity to prove that your loved one is in fact incapacitated with clear and convincing evidence, particularly medical evidence. This may take the form of medical records or a doctor’s affidavit. You may also request an examiner who diagnoses the loved one and establishes his degree of capacity for the court. Evidence may also be presented later at a hearing held after the petition is filed. At the hearing, you will have the opportunity to present any witnesses. Additionally, the examiner, if requested, will present his findings. This procedure provides many opportunities to demonstrate diminished incapacity.
“Would I be an appropriate guardian or conservator?"
Third, you may petition the Court to become the guardian or conservator or in order to appoint another someone else to serve. As the petitioner, you must consider if you would be able to commit the time and resources necessary. Generally, the guardian is responsible for care, custody and control but is not personally liable to third persons for the actions of the loved one.Additionally, the commitment requires substantial personal contact with the loved one on a regular basis.Other duties include taking care of personal effects and commencing any protective proceedings, reporting your loved one’s condition in writing and making decisions on behalf of the loved one by conforming as closely as possible to his wishes. The duties of a conservator, on the other hand, are closely tied to the financial needs of the loved one. The role of guardian or conservator also comes with formal duties which include filingan Inventory and Conservatorship Plan within 60 days; an annual Statement of Account within 30 days of the anniversary date of appointment; a Guardianship Plan within 90 days of appointment; and a Report of Guardian every six months from the anniversary date of appointment.
“What type of guardianship or conservatorship is appropriate in this circumstance?"
Fourth, if it can be established that the loved one is in fact incapacitated the petitioner must determine which type of guardianship or conservatorship is most appropriate. There are several types of guardianships and conservatorships. Each is used to assist an individual living with a particular set of circumstances and allows for long or short-term appointments. A petitioner may seek to be a temporary guardian which includes a 21-day emergency guardian, a health care guardian for as long as 90 days, or a provisional guardian for as long as 6 months. A petitioner may also seek to be a permanent guardian, a permanent general conservator or permanent limited conservator. Factors such as your loved one’s degree of incapacity, financial and real property circumstances and the degree to which a guardian must commit time and resources helps define which type of guardianship or conservatorship is appropriate.
“How can I ensure that the process is relatively stress free for my loved one?"
Understandably, your loved one will be anxious due to the stress associated with a judicial proceeding and what can often be perceived as a loss of independence. Upon reviewing your petition the Court will schedule a hearing approximately one month after filing. You should attempt to prepare your loved one as soon as possible upon being notified of the hearing date. An adult other than the petitioner must serve your loved one with Notice of the Initial Hearing and the petition at least 14 days before the hearing.
“What duties must I fulfill as a guardian or conservator?"
Finally, upon considering the evidence the Court will decide if a guardian or conservator will be appointed, who that person is and the powers that they will be granted. Additionally, the Court may determine if a bond is necessary and its amount. Generally, this will be determined at the conclusion of the hearing. At this point the guardian or conservator should become familiar with the legal duties and obligations as well as the limitations associated with his newly appointed title in order to prevent any legal issues from arising in the future. These duties obligate a conservator to file an Inventory and Conservatorship Plan within 60 days and an annual Statement of Account within 30 days of the anniversary date of appointment and guardian to file a Guardianship Plan within 90 days of appointment and a Report of Guardian every six months from the anniversary date of appointment.