Unfortunately for many people, there comes a time when he or she is not able to make decisions for him or herself. This is a challenging time as we all like to be masters of our own fate. We like making decisions for ourselves. Yet we see circumstances when a traumatic accident may create a circumstance that leaves a person unable to make the decisions that will keep him or her safe.
We like to prepare for that possibility by appointing someone to serve as power of attorney for business and financial matters in addition to appointing someone to serve as Health Care Proxy. This is a decision that can only be made when someone has legal capacity to do so.
The D.C. statute defines an “incapacitated individual” as an adult whose ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that he or she lacks the capacity to manage all or some of his or her financial resources or to meet all or some essential requirements for his or her physical health, safety, habilitation, or therapeutic needs without court-ordered assistance or the appointment of a guardian or conservator.
The D.C. code identifies “incapacitated individual for health care decisions” as an adult individual who lacks sufficient mental capacity to: (A) appreciate the nature and implications of a health care decision; (B) make a choice regarding the alternatives presented; or (C) communicate that choice in an unambiguous manner.
If the steps for less restrictive support have not been taken and the person does not have a capacity to make those appointments the court must intervene to oversee and appoint a person to serve as guardian.
Guardianship has different levels of intervention. There is a permanent general guardian who is appointed without limitations of time or duty. The limited guardian may be appointed with specific areas of is responsibility and/or limitations on time. The court will seek to question whether there have been other less intrusive considerations attempted. There is recognition that guardianship is an intrusion to the privacy of the incapacitated adult.
Once appointed as guardian, the guardian must develop a guardianship plan in consultation with person s/he is supporting. The guardian must be informed of the needs of the person and visit at least one time a month
The severity of the impact of loss of self-determination by being adjudicated incapacitated there are safeguards put in place by the court. The suggested incapacitated person is appointed an attorney to represent their interests. This attorney will meet with the person to provide a neutral opinion to the court regarding capacity.
Guardianship of the property is required to manage the resources of the person who is deemed incapacitated. To be approved to manage the assets the guardian or conservator must secure a bond at an amount that is determined by the court. This assurance will ensure the interests of the incapacitated person. This coupled with the annual reporting to the court ensures that the asset of the person who is incapacitated is only used for his or her best interest.
The guardianship process is significant. Planning for incapacitation is a lot better than fighting through the process.