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Guardianships & Conservatorships.

When an adult lacks the capacity to care for himself or herself or to manage his/her financial affairs, often a family member, or another responsible adult, is appointed by the court as a guardian or conservator if they do not have a Durable Power of Attorney and/or an Advance Medical Directive. The person in need of guidance and care may be an elderly parent, an adult child with a disability, or someone with a serious, incapacitating condition such as extreme alcoholism or Alzheimer's disease.

If someone in your family is in or near the Washington, D.C., area and in need of a legal guardianship or conservatorship, contact the Elder & Disability Law Center to schedule a consultation with a lawyer.

Guardianship

In order to become a legal guardian of an incapacitated individual who is unable to make health care decisions on her behalf, you must institute a court proceeding. Generally, you file a petition for appointment, which includes a narrative presentment of the facts, your relationship to the person, and an explanation as to why you, or someone else, should be appointed. The petition must be accompanied by a certificate of a qualified medical person verifying the incapacity of the individual and the need for a guardianship. The Court will then hold a hearing on your petition.

As legal guardian, you would be responsible for acting in the best interests of the incapacitated individual, developing and implementing a plan of care, assuring his/her medical care and general maintenance, and regularly reporting to the court on the incapacitated individual's condition and otherwise assuring the well-being of the individual. Your decision-making responsibilities may include such matters as health care, nursing home admissions, and Medicaid eligibility. You will also be authorized to pay the person's bills and otherwise oversee their personal affairs. You should consult with an Elder Law attorney to fully understand your responsibilities and the court proceeding.

Conservatorship

A conservator is a fiduciary for an incapacitated person who is unable to make financial decisions or manage their finances. The proceeding for the appointment of the conservator is the same as previously discussed in the section for Guardianships. The conservator is responsible for the management of the assets of the incapacitated individual including the investment of his/her assets, the management of real estate, and the payment of bills and taxes. It is a significant responsibility and should not be undertaken without first consulting with an Elder Law attorney.

A conservator must file an initial inventory with the Court and an annual accounting. We help long-term or emergency conservators meet the requirements of preparing the accounting. This includes calculating the value of the incapacitated person's assets from the beginning of the conservatorship to the annual reporting date. In most jurisdictions, a conservator must be bonded to ensure that the assets of the incapacitated individual are protected. The bonding process requires that you file an application that includes a full disclosure of your assets. A competent Elder Law attorney can assist you in the process.

Capacity

In all jurisdictions you, as the petitioner, will have to prove that the individual who is the subject of the proceeding is "incapacitated." Just because a person is developmentally delayed, cognitively impaired, or suffers from a mental illness, does not automatically mean that a court would find they are incapacitated according to the legal definition.

A general guideline to understanding incapacity is first to determine whether the individual lacks the ability to navigate and/or communicate their health care decisions and financial issues of life in order to maintain and manage a safe environment for himself or herself. If the individual can sustain some, but not all, of the following activities, such as dressing, eating, bathing, ambulating and continence, medication management, and paying bills to assure the integrity of his/her care and management, the court has the authority to fashion a guardianship and/or conservatorship that will best serve the individual's needs.

Guiding Legal Guardians and Conservators after Appointment

The Elder & Disability Law Center has a wealth of experience and a comprehensive evaluation protocol to address the needs of people who are living with disabilities or who are incapacitated. We are able to provide sophisticated legal assistance to guardians and conservators after their court appointment in the management of their ward's personal and financial affairs. If you should have questions about how to proceed with a guardianship or conservatorship, consult with a lawyer experienced in this area at the Elder & Disability Law Center in Washington, D.C., Tysons Corner, Virginia, or Bethesda, Maryland through this Web site, by phone at 202-769-0207, 866-399-4324, or by e-mail.