Guardianship and Conservatorship: Frequently Asked Questions
Authored By: Kenneth Rosenau, Esq. and Evan Greenstein, Esq.
What is a guardian?
A guardian is a person appointed by the court to make healthcare and other mostly non-monetary decisions for someone who cannot make these types of decisions because of an injury, illness, or disability.
What is a conservator?
A conservator is a person appointed by the court to take care of someone's finances when he or she cannot make these types of decisions because of an illness, injury, or disability.
Does my family member or friend need a guardian or conservator?
Sometimes, an illness, injury, or disability can make it difficult or impossible for someone to make decisions about his or her health care, money, living situation, or other personal matters. Examples may include:
- Someone who is in a coma.
- Someone who is mentally challenged.
- Someone who has Alzheimer's disease or other forms of dementia.
- Someone who has had a stroke.
- Someone who has suffered a brain injury.
- If a court finds that a person cannot make any or all of his or her important life decisions, that person is incapacitated.
To decide whether someone is incapacitated, the court holds a hearing and looks at all the facts. It will find that a person is incapacitated if it believes the facts show the person cannot:
- understand the facts about his or her financial, health care, or living situation well enough to make decisions about any or all of those matters, or
- clearly communicate his or her wishes about any or all of those matters.
- If the court decides to appoint a guardian or conservator for an incapacitated person, the incapacitated person is called the ward.
- Sometimes, an illness, injury, or disability can make it difficult or impossible for someone to make decisions about his or her health care, money, living situation, or other personal matters. Examples may include:
When will the court appoint a guardian, and when will it appoint a conservator?
- It depends on the situation, and in what ways the ward is incapacitated. Every situation is different, so the court has to look at each set of facts when making its decision.
- Example where conservator is needed, but guardian is not: Ronnie H. was in a serious auto accident and had minor head injuries. After the accident, Ronnie lived in his parents' basement, went to church, played chess, and walked around the city all on his own. He had no ability to do math, however, and had a conservator handle the insurance settlement, invest it, pay his rent, and send him a small amount of spending money each month.
- Example where guardian is needed, but conservator is not: Wanda M. had a massive stroke and was totally incapable of speech or motion. As a result, she was placed in a nursing home. Because Wanda had no assets or income beyond Social Security, she did not need a conservator to make her financial decisions, but she did need a guardian to make her medical decisions.
- Note that other states may use different terms for these roles, such as personal representative or tutor.
Can the court appoint both a guardian and a conservator?
Yes, if the court finds it appropriate.
Can the same person be both the guardian and the conservator?
Yes, but the court can also appoint different people to serve as guardian and conservator.
Can guardians ever handle money?
- Guardians can handle small amounts of money, such as monthly stipends, Social Security benefits, VA benefits, and the like.
- If the guardian will need to handle more than $24,000 annually, then the judge will usually appoint a conservator as well.
Can the incapacitated person just sign a durable power of attorney so that the court does not have to appoint a guardian or conservator?
- No. To make a durable power of attorney, a person must be able to understand and clearly express what he or she wants. Once he or she is incapacitated enough to need a guardian or conservator, the person cannot make a valid durable power of attorney.
- A court will void (in other words, cancel out) a durable power of attorney if it finds the person who signed it was incapacitated at the time.
- Click here for more information on durable powers of attorney for health care.
- Click here for more information on general durable powers of attorney.
What if the person made a durable power of attorney before becoming incapacitated?
- If the durable power of attorney covered the types of decisions the person needs to have made (financial, health care, etc.), the agent named in the document has the power to make those decisions.
- If the person made a durable power of attorney for one purpose and not another (such as a durable power of attorney for health care, but not a financial durable power of attorney), the court may still appoint a guardian or conservator to step in and make the types of decisions that the durable power of attorney did not include.
Who does the court appoint as a guardian or conservator?
- The court's first choice is a close family member, usually a spouse or domestic partner, parent, or adult child.
- If no close family member is available or suitable, the court will consider other relatives or friends.
- If no family member or friend is available, the court will usually appoint a neutral, specially trained attorney who handles these matters on a regular basis.
Do I want to be a guardian or conservator?
- It depends. Being a guardian or conservator enables you to be absolutely sure your loved one is being well looked after. However, it is also a huge responsibility.
- As a guardian or conservator, you are an officer of the court, and you must give regular reports to the judge. This can be quite time consuming.
- Being a guardian or conservator is a long-term commitment. It lasts for the rest of the ward's life, unless the court appoints someone else to take your place.
- The job of guardian or conservator is very important. You do not want to take on this responsibility unless you are absolutely sure you can do the job.
What if my brother or sister and I both want to serve as our parent's guardian or conservator?
- When two people in the same class both want to be the guardian or conservator, the court will choose based on its opinion of the ward's best interests. It will consider the petitioners' abilities and characters, along with the ward's wishes, if these are known.
- If the court feels that the guardianship or conservatorship issue will seriously harm the family's relationships or the ward, it will skip both petitioners in favor of someone else, usually a more distant relative or a neutral attorney who has been specially trained to handle these matters.
What if I don't live in D.C.?
It doesn't matter where you live. The court is only concerned with where the ward is.
What if my family member or friend is in the hospital in D.C., but he or she doesn't live in the District?
- As long as the ward is inside the District, a D.C. court can hear your guardianship or conservatorship petition.
- It doesn't matter where the ward lives, only that the ward is physically located in the District from the time you file your petition to the time of the hearing.
Where do I go to file for a guardianship or conservatorship?
Guardianship and conservatorship petitions are filed in the Probate Division of the D.C. Superior Court, located at 515 5th St. NW, 3rd floor, Washington, DC 20001.
How much will it cost for me to file for the appointment of a guardian or conservator?
- There is no charge for filing for a guardianship.
- For a conservatorship, there is a $45 filing fee.
What if I can't afford to pay the filing fee?
- The court may waive the fee if you cannot pay it.
- To get a fee waiver, you must submit an Application to Proceed Without Prepayment of Costs, Fees, or Security (In Forma Pauperis). You can get the proper form here and complete it on the computer. You must still file it with the court and serve it on the ward along with all the other papers in your case.
- If you receive public benefits (TANF, POWER, GAC, Food Stamps, IDA, SSDI, or SSI), the court will usually grant your request to waive the filing fee. Otherwise, you will have to explain to the court why the filing fee is a financial hardship.
- When you have completed the form, you must file it with the Judge In Chambers, located in the main D.C. Superior Court building at 500 Indiana Ave., NW, Room 4220.
- If the Judge In Chambers grants your request, you will receive a copy of the judge's order. Take the order with you to the Probate Division when you file your petition for conservatorship. You will not have to pay the filing fee.
- Remember, for a guardianship, there is no filing fee.
After I file my petition and other papers, what else must I do?
- When you file your petition and other papers with the court, the Probate Division clerk will give you a Notice of Hearing with a hearing date.
- You must make sure the ward gets the Notice of Hearing, along with a copy of all the papers you filed with the court. This is called serving the papers.
- The person who serves the papers should hand them directly to the ward.
- If for some reason the person who serves the papers cannot get in to see the ward personally, and if the ward lives at home, the papers can be given to an adult who lives in the ward's home. However, it is much better to serve the ward personally if this is at all possible.
- If the person who serves the papers leaves them at the ward's home with someone other than the ward, you will have to prove to the judge that the person who received the papers actually lives with the ward.
Who should give the papers to my friend or family member?
- It can be anyone who is at least 18 years old and who is not part of the case and has no interest in the situation.
- It must NOT be you.
- It can a friend, but it probably should not be a relative, because a relative might have a financial interest in the case that he or she doesn't know about yet.
- It can be a private process server you have hired (look in the Yellow Pages under "process server").
- A nurse or doctor who is caring for your friend or family member should not serve the papers for you.
What if my friend or family member is in a coma or cannot read or understand what is happening?
- It doesn't matter. The law still requires that the person get a copy of the papers, even if he or she cannot read them.
- Sometimes, the act of serving requires lifting the hand of someone in a coma and sliding the papers under his or her arm.
How long do I have to serve the papers?
- You have 3 days from the day you file your petition to serve the papers on thbe ward.
- If you are not able to serve within that time, you can go back to the Probate Division clerk's office before the 3 days are up. They will give you a new Notice of Hearing and you will get an additional 3 days.
- If you need more time after that, you will have to file a written request for more time and a judge will have to approve it.
- The ward must get the papers at least 15 days before the hearing on your petition.
What do I do after the papers are served?
- The person who served the papers on the ward must complete the Affidavit of Personal Service, which you can download here and complete on the computer. You must still print and file it with the court.
- The Affidavit of Service should include the date, approximate time, and location that the papers were served. It should also state that the person who delivered the papers is over 18 and not a party to the case.
- The person who delivered the papers to the ward must sign and notarize the Affidavit of Service.
- You must file the signed, notarized Affidavit of Service with the court.
What happens next?
The judge will appoint several people to assist him or her throughout the process:
- A guardian ad litem, who gathers information and reports to the court.
- An attorney to represent the interests of the ward.
- A visitor, generally a social worker, who does a mental examination of the ward.
- An examiner, typically a doctor, who assesses the ward for capacity.
- The people appointed by the judge will do an investigation, including meeting with the ward and family members, and report to the judge.
- The judge will schedule a hearing to determine whether to appoint a guardian or conservator.
- The judge will appoint several people to assist him or her throughout the process:
When will the hearing be?
- The hearing is usually is five weeks after the initial filing.
- The court will contact you with your hearing date.
- If you need to reschedule the hearing, call the Probate Division clerk at (202) 879-4800 as soon as possible.
- Keep reading below for information about what to do in case of an emergency.
Does the ward have to come to the hearing?
- The ward's court-appointed attorney will make a recommendation to the judge, who will usually approve that decision.
- The court can excuse the ward from attending if the ward is unlikely to add to the proceeding, or if he or she would be confused or injured. Usually, the ward does not attend if he or she is on a ventilator, is incapable of speech or movement, or is severely demented.
What will happen at the hearing?
- The courtroom is usually empty when guardianship and conservatorship applications are pending. In delicate cases, the judge may close the courtroom to the public even if people want to watch.
- Usually, the hearings are informal. The parties and their lawyers simply sit at the tables at the front of the courtroom and talk to the judge.
- If you have an attorney, the attorney will ask you questions. If you do not have an attorney, you can simply explain to the judge why you want to be appointed as guardian or conservator, and why you are qualified to do the job.
- The ward's attorney may also ask you questions, but usually this does not happen.
- Although it is usually not necessary, you (or your attorney) and the ward's attorney may call witnesses to testify about facts that are relevant to the petition, and you may both ask each other's witnesses questions.
- You may also present documents or other evidence to the judge.
How can I get a lawyer to help me during this process?
- Click here for a list of organizations that may be able to help you.
- You may be able to find a private lawyer who will represent you and ask the court to be paid out of the ward's assets or out of a special fund. See the next question to learn how this works.
- Click here for useful information about hiring a private lawyer.
How do the lawyers get paid during these hearings?
- Before getting paid, all of the lawyers (the ward's lawyer and yours, if you have one) must file a fee petition, describing their fees in detail.
- All parties have 21 days to object to the other side's fees. After that, the judge issues an order directing the lawyers' fees to be paid.
The lawyers' fees are paid in one of two ways:
- If the ward has assets that can be easily accessed, the attorneys will be paid out of those assets.
- Usually, the attorneys will ask to be paid from a special guardianship fund established by Congress. If the ward has no assets, or they are tied up in a house that cannot be sold, the guardianship fund will pay the lawyers' fees.
What does it mean to
- If you are appointed as conservator, you must post bond.
- A guardian does not need to post bond.
- You post bond by asking a bonding company to issue a bond on your behalf, which you file with the court after your petition is granted.
- The purpose of a bond is to insure that if the conservator does not do his or her job correctly or loses or steals the ward's assets, the ward will be protected.
- If the ward's assets are lost or stolen for any reason, the court will order the bonding company to pay the value of the bond to the ward. The bonding company may then sue you for the money it had to pay. If you posted property, such as a house, as security for the bond, the bonding company may foreclose on that property to get its money back.
- At the hearing on your conservatorship petition, the court will ask whether you can post bond. Before the hearing, you should find a bonding company that is willing to issue a bond for you, and bring a letter from the bonding company with you to the hearing.
- You can find a bonding company through the Yellow Pages. Bonding companies will write bonds to most people who own their own homes and have proof of stability and employment. The fees are relatively low.
My family member or friend is experiencing an emergency and needs a guardian right away. Can this process be done more quickly?
- In an emergency, the court can appoint a temporary healthcare guardian for 90 days, or an emergency guardian for 15 days.
- Click here for a petition to be appointed a 15-day emergency guardian. You can fill out the form online, but you will still need to file it with the court.
- If you want to ask the court to appoint you as a 90-day temporary healthcare guardian, click here for the proper form. You can fill out the form online, but you must still file it with the court.
- If you are filing a temporary or emergency petition, you should also submit a proposed order for the court to sign. Click here for a form you can use. You must still submit it to the court.
- To file a temporary or emergency petition, go first to the Probate Division clerk's office at 515 5th St. NW, 3rd floor, file a permanent guardianship petition, then proceed to the Judge In Chambers at 500 Indiana Ave., NW, Room 4220, to file your emergency petition.
- The Judge in Chambers will usually have a hearing on your temporary or emergency petition within 7 days. If the situation is extremely urgent, you should explain this in your emergency petition, and the judge may agree to hear your case earlier.
What if the temporary guardianship is set to expire before the hearing on my permanent guardianship petition?
You should file a motion with the Judge in Chambers asking to extend the temporary guardianship. Click here for a form you can use for your motion. You must still file it with the court.
What happens if the judge appoints me as a guardian or conservator?
- You will get a copy of the court's written order. Take this order to the Register of Wills, which is in the same office as the Probate Division at 515 5th St., NW, 3rd Floor.
- The Register of Wills will issue you a letter stating that you have been appointed as the ward's guardian or conservator. You can show this letter to banks and other financial institutions, hospitals, nursing homes, and the like to prove that you have the authority to make decisions for your family member or friend.
- Keep the court's order and the letter from the Register of Wills in a safe place with your important documents.
How long does the guardianship or conservatorship order last?
Once the court has appointed a guardian or conservator, the order lasts until:
- The ward dies.
- The court finds that the ward is no longer incapacitated (the ward can petition the court for this).
- The guardian or conservator dies or resigns.
- The court finds that it is in the ward's best interest to remove the guardian or conservator.
What happens if the ward or the guardian or conservator leaves the District?
The guardianship or conservatorship order remains good everywhere in the United States until a court terminates it.