When an individual either through birth, illness, accident, etc. has been incapacitated to the point that they can no longer make pertinent life decisions a court may appoint them a Guardian or Conservator. Both of these positions grant powers to the Guardian or Conservator to make necessary financial or healthcare-related decisions on behalf of the incapacitated individual.

The term “incapacitated” is a legal term of art used in specific scenarios where the court deems a person incompetent and unable to make decisions regarding their health and/or finances for themselves. Generally, when someone who, due to an illness or disability is unable to make decisions about his healthcare, living situation or other non-monetary personal matters, the court may appoint them a Guardian. The incapacitated individual is now deemed a “Ward” of the Guardian. An example of when a Guardian is appointed in lieu of a Conservator would be, a woman suffers an accident which renders her unable to speak or move. If the woman had no ascertainable assets or income she likely only needs a Guardian to oversee minor financial decisions such as social security, VA benefits; while in the meantime she needs the Guardian to take full responsibility of her healthcare due to her incapacitation.

In contrast, the court may appoint a Conservator to an incapacitated person if they have no discernable ability to control their own finances but can make decisions regarding their health. For example, an individual who, due to an accident or mental illness, can live a semi-autonomous life but has lost or never had the ability to even basic mathematical functions may require the assistance of a Conservator. In that scenario, the Conservator would handle all the finances for the individual while taking no control over healthcare decisions. Both “Guardian” and “Conservator” are terms which are used with some interchangeability amongst the states.

Routinely courts appoint both a Conservator and Guardian for a single incapacitated individual because they are incapable of taking care of both their financial and healthcare needs. This may either result in one person taking on both positions, or two separate individuals each taking on one position. Courts often attempt to appoint the closest family member, such as spouse, partner, parent or adult child. If none of these persons exist, are unavailable, or unsuitable for the task the court will appoint an extended family member or close friend. If no one can take on the task the court will appoint a neutral attorney, trained on these matters, to assist.

In Washington D.C., so long as the Ward resides within the District, a petitioner may file in the D.C. court system to petition for Guardianship or Conservatorship. A family member or other interested party in the Ward’s well-being may petition with the Probate Division of the D.C. Superior Court to become either a Guardian, Conservator, or both for the Ward. Upon filing the petition the court will schedule a hearing on the matter and serve a copy of all papers filed with the petition to the Ward. This is true even if the individual is in a coma or cannot read or understand the papers handed to them. At this time the court will appoint several interim persons to assist the Ward through this process including a guardian ad litem (collects information and reports to the court); an attorney to represent the Ward and his/her interests; a social worker; and a doctor (assess the Ward for mental capacity).

At the actual hearing, the petitioner may have a retained attorney there to assist them or they may simply represent themselves. The petitioner will need to explain to the Judge why they believe they should be appointed as the Guardian or Conservator and how they are qualified to carry out the tasks required of the position. You may present evidence to the judge and rarely witnesses are called to testify about facts relevant to the proceeding.

Once appointed as a Guardian or Conservator you retain that position for life until one of the following occurs: the Ward dies; the court finds the Ward no longer incapacitated; the Guardian or Conservator dies or resigns; the court believes it the best interest to remove the Guardian or Conservator. This remains true even if the Guardian / Conservator or Ward leaves D.C.; only a court may terminate the relationship. The Guardian/ Conservator needs to file accountings with the court so it can oversee the process of how you are taking care of the ward.  If you are seeking assistance in being appointed a Guardian or Conservator in Washington D.C., seek the assistance of a qualified attorney in this field to ensure your loved one’s best interests are protected.