Probate Code
Each state’s laws enumerate certain duties and limitations for guardians and conservators. These laws tend to be lengthy and detailed. For a comprehensive understanding of them, including relevant exceptions and requirements, the statutes themselves should be reviewed. Additionally, state laws must be read in conjunction with the order of appointment of a guardian or conservator by the judge which may further limit the guardian’s powers and responsibilities.
A guardian has the following responsibilities. A guardian shall:
- Become or remain personally acquainted with the ward and maintain sufficient contact with the ward to know of the ward’s capacities, limitations, needs, opportunities, and physical and mental health;
- Take reasonable care of the ward’s personal effects and commence protective proceedings, if necessary, to protect other property of the ward;
- Apply any available money of the ward to the ward’s current needs for support, care, habilitation, and treatment;
- Conserve any excess money of the ward for the ward’s future needs, but if a conservator has been appointed for the estate of the ward, the guardian, at least quarterly, shall pay to the conservator money of the ward to be conserved for the ward’s future needs;
- Report in writing the condition of the ward and of the ward’s estate that has been subject to the guardian’s possession or control, as ordered by the court on petition of any person interested in the ward’s welfare or on any order of the court, but at least semiannually;
- Make decisions on behalf of the ward by conforming as closely as possible to a standard of substituted judgment or, if the ward’s wishes are unknown and remain unknown after reasonable efforts to discern them, make the decision on the basis of the ward’s best interests;
- Include the ward in the decision-making process to the maximum extent of the ward’s ability; and
- Encourage the ward to act on his or her own behalf whenever he or she is able to do so, and to develop or regain capacity to make decisions in those areas in which he or she is in need of decision-making assistance, to the maximum extent possible.
A general guardian or limited guardian may:
- Receive money payable for the support of the ward under the terms of any statutory benefit or insurance system or any private contract, devise, trust, conservatorship, or custodianship;
- Take custody of the person of the ward and establish the ward’s place of abode within or without the District, if consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the ward;
- Institute proceedings, including administrative proceedings, or take other appropriate action to compel the performance by any person of a duty to support the ward or to pay sums for the welfare of the ward, if no conservator for the estate of the ward has been appointed;
- Consent to medical examination and medical or other professional care, treatment, or advice for the ward, without liability, by reason of the consent for injury to the ward resulting from the negligence or acts of third persons, unless the guardian fails to act in good faith;
- Obtain medical records for the purpose of applying for government entitlements or private benefits and have the status of a legal representative under the District of Columbia Mental Health Information Act of 1978; and
- If reasonable under all of the circumstances, delegate to the ward certain responsibilities for decisions affecting the ward’s well-being.
A guardian does not have the power:
- To consent to an abortion, sterilization, psycho-surgery, or removal of a bodily organ except to preserve the life or prevent the immediate serious impairment of the physical health of the incapacitated individual, unless the power to consent is expressly set forth in the order of appointment or after subsequent hearing and order of the court;
- To consent to convulsive therapy, experimental treatment or research, or behavior modification programs involving aversive stimuli, unless the power to consent is expressly set forth in the order of appointment or after subsequent hearing and order of the court;
- To consent to the withholding of non-emergency, life-saving, medical procedures unless it appears that the incapacitated person would have consented to the withholding of these procedures and the power to consent is expressly set forth in the order of appointment or after subsequent hearing and order of the court;
- To consent to the involuntary or voluntary civil commitment of an incapacitated individual who is alleged to be mentally ill and dangerous under any provision or proceeding occurring under Chapter 5 of Title 21, except that a guardian may function as a petitioner for the commitment consistent with the requirements of Chapter 5 of Title 21 or Chapter 13 of Title 7;
- To consent to the waiver of any substantive or procedural right of the incapacitated individual in any proceeding arising from an insanity acquittal;
- To prohibit the marriage or divorce, or consent to the termination of parental rights, unless the power is expressly set forth in the order of appointment or after subsequent hearing and order of the court; or
- To impose unreasonable confinement or involuntary seclusion, including forced separation from other persons or the restriction of the incapacitated individual’s access to email, phone calls, and mail, unless the power is expressly set forth in the order of appointment or after subsequent hearing and order of the court.
A conservator has the duty to act as a fiduciary and observe the standards of care applicable to trustees. A conservator, acting reasonably in efforts to accomplish a purpose of the appointment, may act without court authorization or confirmation, to perform the following:
- Collect, hold, and retain assets of the estate including land in another jurisdiction, until judging that disposition of the assets should be made, and the assets may be retained even though they include an asset in which the conservator is personally interested;
- Receive additions to the estate;
- Continue or participate in the operation of any business or other enterprise;
- Acquire an undivided interest in an estate asset in which the conservator, in any fiduciary capacity, holds an undivided interest;
- Invest and reinvest estate assets;
- Deposit estate funds in a local or federally insured financial institution, including a financial institution operated by the conservator;
- Acquire or dispose of an estate asset, including land in another jurisdiction, for cash or on credit, at public or private sale, and manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset;
- Make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish any improvements, and raze existing or erect new party walls or buildings;
- Subdivide, develop, or dedicate land to public use, make or obtain the vacation of plats and adjust boundaries, adjust differences in valuation or exchange, partition by giving or receiving considerations, and dedicate easements to public use without consideration;
- Enter, for any purpose, into a lease as lessor or lessee, with or without option to purchase or renew, for a term within or extending beyond the term of the conservatorship;
- Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a polling or agreement;
- Grant an option involving disposition of an estate asset and take an option for the acquisition of any asset;
- Vote a security, in person or by general or limited proxy;
- Pay calls, assessments, and any other sums chargeable or accruing against or on account of securities;
- Sell or exercise stock-subscription or conversion rights;
- Consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;
- Insure the assets of the estate against damage or loss and the conservator against liability with respect to third persons;
- Borrow money to be repaid from estate assets or otherwise, advance money for the protection of the estate or the protected individual and for all expenses, losses, and liabilities sustained in the administration of the estate or because of the holding or ownership of any estate assets, for which the conservator has a lien on the estate as against the protected individual for advances so made;
- Pay or contest any claim, settle a claim by or against the estate or the protected individual by compromise, arbitration, or otherwise, and release, in whole or part, any claim belonging to the estate to the extent the claim is uncollectible;
- Pay taxes, assessments, compensation of the conservator, and other expenses incurred in the collection, care, administration, and protection of the estate;
- Allocate items of income or expense to either estate income or principal, as provided by law, including creation of reserves out of income for depreciation, obsolescence, amortization, or for depletion in mineral or timber properties;
- Pay any sum distributable to a protected individual or dependent of the protected individual by paying the sum to the distributee or by paying the sum for the use of the distributee to the guardian of the distributee, or, if none, to a relative or other person having custody of the distributee;
- Employ persons, including attorneys, auditors, investment advisors, or agents to advise or assist in the performance of administrative duties, act upon their recommendation without independent investigation, and instead of acting personally, employ one or more agents to perform any act of administration, whether discretionary or not;
- Prosecute or defend actions, claims, or proceedings in any jurisdiction for the protection of estate assets and for the protection of the conservator in the performance of fiduciary duties; and
- Execute and deliver all instruments that will accomplish or facilitate the exercise of the powers vested in the conservator.
D.C. Code § 21-2047
D.C. Code § 21-2047.01
D.C. Code § 21-2063