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District of Columbia Official Code 2001 Edition. |
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Division III. Decedents' Estates and Fiduciary Relations. |
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Title 21. Fiduciary Relations and Persons with Mental Illness. |
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Chapter 20. Guardianship, Protective Proceedings, and Durable Power of Attorney. |
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Subchapter V. Guardians of Incapacitated Individuals.
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(a) An incapacitated individual or any person interested in the welfare of the incapacitated individual may petition for appointment of a guardian, either limited, temporary, or general.
(b) The petition shall state the name, address, and interest of the petitioner, state the name, age, residence, and address of the individual for whom a guardian is sought, and set forth the reasons for which the guardianship is sought with specific particularity so as to enable the court to determine what class of examiner and visitor should examine the person alleged to be incapacitated.
(c) The petition shall be served upon the subject of the petition, by first class mail, within 3 days of its filing. Proof of service is to be by certificate of service.
(d) After the filing of a petition, the court shall set a date for hearing on the issue of incapacity so that notice may be given as required by section 21-2042 and, unless the allegedly incapacitated individual is represented by counsel, the court shall appoint an attorney to represent the individual in the proceeding. The court shall appoint an appropriately qualified examiner who shall submit a report in writing to the court. The individual alleged to be incapacitated also shall be interviewed by a visitor appointed by the court. The examiner and the visitor shall be separate persons. The court may waive the appointment of a visitor and, where a report has been submitted in writing to the court for the allegedly incapacitated individual, the court may waive the appointment of an examiner. The court shall waive, absent good cause shown, the appointments of a visitor and examiner if the petition seeks appointment of an emergency guardian or a health-care guardian and the petition is supported by the certification of incapacity made pursuant to section 21- 2204.
(e) The court may utilize the services of additional visitors to evaluate the condition of the allegedly incapacitated individual and to make appropriate recommendations to the court.
(f) In the case of an individual whose incapacity is alleged to arise out of an intellectual disability, preference is for the appointment of an examiner and visitor who are qualified development disability professionals and who can collectively give a complete social, psychological, and medical evaluation of the individual. The court may waive the appointment of a visitor and, where a current individual habilitation plan prepared pursuant to section 7-1304.03 is submitted to the court, the court may waive the appointment of an examiner.
(g) For any individual alleged to be incapacitated, any current social, psychological, medical, or other evaluation used for diagnostic purposes or in the development of a current plan of treatment or any current plan of treatment shall be presented as evidence to the court. For an individual alleged to be incapacitated for health-care decisions, the certification of incapacity made pursuant to section 21-2204 shall be presented as evidence to the court.
(h) An individual alleged to be incapacitated shall be present at the hearing unless good cause is shown for the absence. The individual shall be represented by counsel and is entitled to present evidence and to cross-examine witnesses, including any court-appointed examiner or visitor. The hearing may be closed if the individual alleged to be incapacitated or counsel for the individual so requests.
(i) Any person may apply for permission to participate in the proceeding, and the court may grant the request, with or without hearing, upon determining that the best interest of the alleged incapacitated individual will be served. The court may attach appropriate conditions to the permission.
(Feb. 28, 1987, D.C. Law 6-204, § 2(a), 34 DCR 632; Sept. 22, 1989, D.C. Law 8-34, § 2(f)-(g), 36 DCR 5035; Apr. 24, 2007, D.C. Law 16-305, § 35(c)(2), 53 DCR 6198; Oct. 22, 2008, D.C. Law 17-249, § 2(c), 55 DCR 9206; Sept. 26, 2012, D.C. Law 19-169, § 21(h)(3), 59 DCR 5567.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 21-2041.
Effect of Amendments
D.C. Law 16-305, in subsec. (f), substituted "individual alleged to have mental retardation" for "alleged mentally retarded individual".
D.C. Law 17-249, in subsec. (a), inserted ", temporary," following "limited"; and rewrote subsecs. (d), (f), and (g), which had read as follows:
"(d) After the filing of a petition, the court shall set a date for hearing on the issue of incapacity so that notice may be given as required by section 21- 2042 and, unless the allegedly incapacitated individual is represented by counsel, the court shall appoint an attorney to represent the individual in the proceeding. The court shall appoint an appropriately qualified examiner who shall submit a report in writing to the court. The individual alleged to be incapacitated also shall be interviewed by a visitor appointed by the court. The examiner and the visitor shall be separate persons. The court may waive the appointment of a visitor and, where a report has been submitted in writing to the court for the allegedly incapacitated individual, the court may waive the appointment of an examiner.
"(f) In the case of an individual whose incapacity is alleged to arise out of mental retardation, preference is for the appointment of an examiner and visitor who are qualified mental retardation professionals and who can collectively give a complete social, psychological, and medical evaluation of the individual. When the individual alleged to have mental retardation has a current comprehensive evaluation or habilitation plan, the plan shall be presented as evidence to the court. When a plan exists but has not been updated within 6 months prior to the hearing, preference is for an update of the plan as part of the examination conducted by the examiner and visitor."
"(g) For any other individual alleged to be incapacitated, any current social, psychological, medical, or other evaluation used for diagnostic purposes or in the development of a current plan of treatment or any current plan of treatment shall be presented as evidence to the court."
D.C. Law 19-169, in subsec. (f), substituted "of an intellectual disability" for "of mental retardation" and "qualified developmental disability professional" for "qualified mental retardation professional".
Temporary Amendments of Section
Section 2(c) of D.C. Law 16-194, in subsec. (a), substituted "limited, temporary," for "limited"; in subsec. (d) added the following sentence at the end: "The court shall waive the appointments of a visitor and examiner if the petition seeks appointment of an emergency guardian or a health-care guardian and the petition is supported by the certification of incapacity made pursuant to section 21-2204."; in subsec. (f) struck the second and third sentences and inserted the following sentence in their place: "The court may waive the appointment of a visitor and, where a current individual habilitation plan prepared pursuant to section 7-1304.03 is submitted to the court, the court may waive the appointment of an examiner."; and in subsec. (g), substituted "individual" for "other individual", and added the following sentence at the end: "For an individual alleged to be incapacitated for health-care decisions, the certification of incapacity made pursuant to section 21-2204 shall be presented as evidence to the court.".
Section 6(b) of D.C. Law 16-194 provides that the act shall expire after 225 days of its having taken effect.
Section 2(c) of D.C. Law 17-100, in subsec. (a), substituted "limited, temporary," for "limited"; in subsec. (d), added the sentence "The court shall waive the appointments of a visitor and examiner if the petition seeks appointment of an emergency guardian or a health-care guardian and the petition is supported by the certification of incapacity made pursuant to section 21- 2204." at the end; in subsec. (f), substituted "The court may waive the appointment of a visitor and, where a current individual habilitation plan prepared pursuant to section 7-1304.03 is submitted to the court, the court may waive the appointment of an examiner." for the second and third sentences; and in subsec. (g), substituted "individual" for "other individual" and added the sentence "For an individual alleged to be incapacitated for health-care decisions, the certification of incapacity made pursuant to section 21-2204 shall be presented as evidence to the court." at the end.
Section 6(b) of D.C. Law 17-100 provides that the act shall expire after 225 days of its having taken effect.
Emergency Act Amendments
For temporary (90 day) amendment of section, see § 2(c) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Amendment Act of 2006 (D.C. Act 16-480, September 25, 2006, 53 DCR 7940).
For temporary (90 day) amendment of section, see § 2(c) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2006 (D.C. Act 16-566, December 19, 2006, 53 DCR 10272).
For temporary (90 day) amendment of section, see § 2(c) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2007 (D.C. Act 17-161, October 18, 2007, 54 DCR 10932).
For temporary (90 day) amendment of section, see § 2(c) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2008 (D.C. Act 17-245, January 23, 2008, 55 DCR 1230).
For temporary (90 day) amendment, see § 2(c) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2008 (D.C. Act 17-492, August 4, 2008, 55 DCR 9167).
Legislative History of Laws
For legislative history of D.C. Law 6-204, see Historical and Statutory Notes following § 21-2001.
For legislative history of D.C. Law 8-34, see Historical and Statutory Notes following § 21-2002.
For Law 16-305, see notes following § 21-501.
For Law 17-249, see notes following § 21-2002.
For history of Law 19-169, see notes under § 21-501.
Uniform Law
This section is based upon § 2-203 of the Uniform Guardianship and Protective Proceedings Act (1982 Act). See 8A Uniform Laws Annotated, Master Edition, or ULA Database on WESTLAW.
(a) In a proceeding for the appointment of a guardian of an incapacitated individual, notice of a hearing shall be given to each of the following:
(1) The individual alleged to be incapacitated and his or her spouse or, if none, adult children, or, if none, parents;
(2) Any person who is serving as guardian or conservator, or who has the care and custody of the individual alleged to be incapacitated;
(3) In case no other individual is notified under paragraph (1) of this subsection, at least 1 of the nearest adult relatives, if any can be found; and
(4) Any other person as directed by the court.
(b) Notice of a hearing on a petition for an order subsequent to appointment of a guardian shall be given to the ward, the guardian, and any other person ordered by the court.
(c) Notice shall be served personally on the alleged incapacitated individual. Notice to other individuals as required by subsection (a) of this section shall be served personally if the individual to be notified can be found within the District. In all other cases, required notices shall be given as provided in section 21-2031.
(d) The individual alleged to be incapacitated may not waive notice.
(Feb. 28, 1987, D.C. Law 6-204, § 2(a), 34 DCR 632; Mar. 24, 1998, D.C. Law 12-81, § 14(s), 45 DCR 745.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 21-2042.
Legislative History of Laws
For legislative history of D.C. Law 6-204, see Historical and Statutory Notes following § 21-2001.
For legislative history of D.C. Law 12-81, see Historical and Statutory Notes following § 21-2011.
Uniform Law
This section is based upon § 2-204 of the Uniform Guardianship and Protective Proceedings Act (1982 Act). See 8A Uniform Laws Annotated, Master Edition, or ULA Database on WESTLAW.
(a) Any qualified person may be appointed guardian of an incapacitated individual.
(a-1)(1) Except as provided in paragraph (2) of this subsection, a person will be deemed by the court to have a conflict of interest and may not be appointed as a guardian if the person:
(A) Provides substantial services other than serving as guardian to the incapacitated individual in a professional or business capacity;
(B) Is a creditor of the incapacitated individual; or
(C) Is employed by any person or entity that provides services other than serving as guardian to the incapacitated individual in a professional or business capacity.
(2) Notwithstanding the provisions of paragraph (1) of this subsection, a person may be appointed as a guardian if:
(A) The person is the incapacitated individual's spouse, domestic partner, adult child, parent, adult sibling, or relative with whom the incapacitated individual has resided for more than 6 months prior to the filing of the petition; and
(B) The court determines that the potential conflict of interest is insubstantial and that the appointment would clearly be in the best interests of the incapacitated individual; provided, that the court may not appoint a guardian in any other circumstance in which a conflict of interest may occur.
(b) Unless lack of qualification or other good cause dictates the contrary, the court shall appoint a guardian in accordance with the incapacitated individual's current stated wishes or his or her most recent nomination in a durable power of attorney.
(c) Except as provided in subsection (b) of this section, the following persons are entitled to consideration for appointment in the order listed:
(1) The spouse or domestic partner of the incapacitated individual or a person nominated by will of a deceased spouse or domestic partner or by another writing signed by the spouse or domestic partner and attested by at least 2 witnesses;
(2) An adult child of the incapacitated individual or a person nominated by will of a deceased adult child or by other writing signed by the child and attested by at least 2 witnesses;
(3) A parent of the incapacitated individual or a person nominated by will of a deceased parent or by other writing signed by a parent and attested by at least 2 witnesses;
(3A) An adult sibling of the incapacitated individual or a person nominated by will of a deceased sibling or by other writing signed by an adult sibling and attested by at least 2 witnesses;
(4) Any relative of the incapacitated individual with whom he or she has resided for more than 6 months prior to the filing of the petition; and
(5) Any other person.
(d) With respect to persons having equal priority, the court shall select the person it deems best qualified to serve. The court, acting in the best interest of the incapacitated individual, may pass over a person having priority and appoint a person having a lower priority or no priority.
(e) A guardian shall limit his or her caseload to a size that allows the guardian:
(1) To accurately and adequately support and protect each ward;
(2) To maintain regular and reasonable contact with each ward, including a minimum of one visit per month, unless otherwise specified by the court based on the expressed preferences of the ward or the ward's best interests; and
(3) To have regular contact with service providers.
(Feb. 28, 1987, D.C. Law 6-204, § 2(a), 34 DCR 632; Apr. 4, 2006, D.C. Law 16-79, § 7(b), 53 DCR 1035; Oct. 22, 2008, D.C. Law 17-249, § 2(d), 55 DCR 9206.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 21-2043.
Effect of Amendments
D.C. Law 16-79, in subsec. (c)(1), substituted "spouse or domestic partner" for "spouse".
D.C. Law 17-249 added subsecs. (a-1), (c)(3A), and (e).
Temporary Amendments of Section
Section 2(d) of D.C. Law 16-194 added par. (3A) to subsec. (c) and added subsecs. (a-1) and (e) to read as follows:
"(a-1)(1) Except as provided in paragraph (2) of this subsection, a person may not be appointed as a guardian if the person:
"(A) Provides substantial services to the incapacitated individual in a professional or business capacity;
"(B) Is a creditor of the incapacitated individual; or
"(C) Is employed by any person or entity that provides services to the incapacitated individual in a professional or business capacity.
"(2) Notwithstanding the provisions of subsection (a-1) of this section, a person may be appointed as a guardian if the person is the incapacitated individual's spouse, domestic partner, adult child, parent, adult sibling, or relative with whom the incapacitated individual has resided for more than 6 months prior to the filing of the petition and the court determines that the potential conflict of interest is insubstantial and that the appointment would clearly be in the best interests of the incapacitated individual. The court may not appoint a guardian in any other circumstance in which a conflict of interest may occur."
"(3A) An adult sibling of the incapacitated individual or a person nominated by will of a deceased sibling or by other writing signed by an adult sibling and attested by at least 2 witnesses;"
"(e) A guardian shall limit his or her caseload to a size that allows the guardian:
"(1) To accurately and adequately support and protect each ward;
"(2) To make a minimum of one visit per month with each ward; and
"(3) To have regular contact with service providers.".
Section 6(b) of D.C. Law 16-194 provides that the act shall expire after 225 days of its having taken effect.
Section 2(d) of D.C. Law 17-100 added subsecs. (a-1), (c)(3A), and (e) to read as follows:
"(a-1)(1) Except as provided in paragraph (2) of this subsection, a person may not be appointed as a guardian if the person:
"(A) Provides substantial services to the incapacitated individual in a professional or business capacity;
"(B) Is a creditor of the incapacitated individual; or
"(C) Is employed by any person or entity that provides services to the incapacitated individual in a professional or business capacity.
"(2) Notwithstanding the provisions of paragraph (1) of this subsection, a person may be appointed as a guardian if:
"(A) The person is the incapacitated individual's spouse, domestic partner, adult child, parent, adult sibling, or relative with whom the incapacitated individual has resided for more than 6 months prior to the filing of the petition; and
"(B) The court determines that the potential conflict of interest is insubstantial and that the appointment would clearly be in the best interests of the incapacitated individual. The court may not appoint a guardian in any other circumstance in which a conflict of interest may occur."
"(3A) An adult sibling of the incapacitated individual or a person nominated by will of a deceased sibling or by other writing signed by an adult sibling and attested by at least 2 witnesses;"
"(e) A guardian shall limit his or her caseload to a size that allows the guardian:
"(1) To accurately and adequately support and protect each ward;
"(2) To make a minimum of one visit per month with each ward; and
"(3) To have regular contact with service providers."
Section 6(b) of D.C. Law 17-100 provides that the act shall expire after 225 days of its having taken effect.
Emergency Act Amendments
For temporary (90 day) amendment of section, see § 2(d) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Amendment Act of 2006 (D.C. Act 16-480, September 25, 2006, 53 DCR 7940).
For temporary (90 day) amendment of section, see § 2(d) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2006 (D.C. Act 16-566, December 19, 2006, 53 DCR 10272).
For temporary (90 day) amendment of section, see § 2(d) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2007 (D.C. Act 17-161, October 18, 2007, 54 DCR 10932).
For temporary (90 day) amendment of section, see § 2(d) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2008 (D.C. Act 17-245, January 23, 2008, 55 DCR 1230).
For temporary (90 day) amendment, see § 2(d) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2008 (D.C. Act 17-492, August 4, 2008, 55 DCR 9167).
Legislative History of Laws
For legislative history of D.C. Law 6-204, see Historical and Statutory Notes following § 21-2001.
For Law 16-79, see notes following § 21-2011.
For Law 17-249, see notes following § 21-2002.
Uniform Law
This section is based upon § 2-205 of the Uniform Guardianship and Protective Proceedings Act (1982 Act). See 8A Uniform Laws Annotated, Master Edition, or ULA Database on WESTLAW.
(a) The court shall exercise the authority conferred in this subchapter so as to encourage the development of maximum self-reliance and independence of the incapacitated individual. The court, on appropriate findings, may appoint a limited guardian, a temporary guardian, or a general guardian. When the court appoints a guardian, it shall appoint the type of guardianship that is least restrictive to the incapacitated individual in duration and scope, taking into account the incapacitated individual's current mental and adaptive limitations or other conditions warranting the appointment.
(b) The court may appoint a guardian as requested if it is satisfied that the individual for whom a guardian is sought is incapacitated and that the appointment is necessary as a means of providing continuing care and supervision of the person of the incapacitated individual. The court, on appropriate findings, may:
(1) Treat the petition as a petition for a protective order under section 21-2051 and proceed accordingly;
(2) Enter any other appropriate order; or
(3) Dismiss the proceedings.
(c) The court, at the time of appointment, later on its own motion, or on appropriate petition or motion of the incapacitated individual or other interested person, may limit the powers of a guardian otherwise conferred by this chapter and create a limited guardianship. Any limitation on the statutory power of a guardian of an incapacitated individual shall be endorsed on the guardian's letters. Following the same procedure, a limitation may be removed or modified and appropriate letters issued.
(d) While a petition for appointment of a guardian is pending, after a preliminary hearing, and without notice to others, the court may preserve and apply the property of the individual to be protected as may be required for support of the individual or dependents of the individual.
(Feb. 28, 1987, D.C. Law 6-204, § 2(a), 34 DCR 632; Oct. 22, 2008, D.C. Law 17-249, § 2(e), 55 DCR 9206.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 21-2044.
Effect of Amendments
D.C. Law 17-249 rewrote subsec. (a), which had read as follows:
"(a) The court shall exercise the authority conferred in this subchapter so as to encourage the development of maximum self-reliance and independence of the incapacitated individual and make appointive and other orders only to the extent necessitated by the incapacitated individual's mental and adaptive limitations or other conditions warranting the procedure."
Temporary Amendments of Section
Section 2(e) of D.C. Law 16-194 amended (a) to read as follows:
"(a) The court shall exercise the authority conferred in this subchapter so as to encourage the development of maximum self-reliance and independence of the incapacitated individual. The court, on appropriate findings, may appoint a limited guardian, a temporary guardian, or a general guardian. When the court appoints a guardian, it shall appoint the type of guardianship which is least restrictive to the incapacitated individual in duration and scope, taking into account the incapacitated individual's current mental and adaptive limitations or other conditions warranting the procedure."
Section 6(b) of D.C. Law 16-194 provides that the act shall expire after 225 days of its having taken effect.
Section 2(e) of D.C. Law 17-100 amended subsec. (a) to read as follows:
"(a) The court shall exercise the authority conferred in this subchapter so as to encourage the development of maximum self-reliance and independence of the incapacitated individual. The court, on appropriate findings, may appoint a limited guardian, a temporary guardian, or a general guardian. When the court appoints a guardian, it shall appoint the type of guardianship that is least restrictive to the incapacitated individual in duration and scope, taking into account the incapacitated individual's current mental and adaptive limitations or other warranted conditions."
Section 6(b) of D.C. Law 17-100 provides that the act shall expire after 225 days of its having taken effect.
Emergency Act Amendments
For temporary (90 day) amendment of section, see § 2(e) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Amendment Act of 2006 (D.C. Act 16-480, September 25, 2006, 53 DCR 7940).
For temporary (90 day) amendment of section, see § 2(e) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2006 (D.C. Act 16-566, December 19, 2006, 53 DCR 10272).
For temporary (90 day) amendment of section, see § 2(e) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2007 (D.C. Act 17-161, October 18, 2007, 54 DCR 10932).
For temporary (90 day) amendment of section, see § 2(e) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2008 (D.C. Act 17-245, January 23, 2008, 55 DCR 1230).
For temporary (90 day) amendment, see § 2(e) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2008 (D.C. Act 17-492, August 4, 2008, 55 DCR 9167).
Legislative History of Laws
For legislative history of D.C. Law 6-204, see Historical and Statutory Notes following § 21-2001.
For Law 17-249, see notes following § 21-2002.
Uniform Law
This section is based upon § 2-206 of the Uniform Guardianship and Protective Proceedings Act (1982 Act). See 8A Uniform Laws Annotated, Master Edition, or ULA Database on WESTLAW.
By accepting appointment, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person. Notice of any proceeding shall be delivered or mailed to the guardian at the address listed in the court records and at the address as then known to the petitioner, except where the guardian resides in a foreign jurisdiction in which case notice shall be made to the court.
(Feb. 28, 1987, D.C. Law 6-204, § 2(a), 34 DCR 632.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 21-2045.
Legislative History of Laws
For legislative history of D.C. Law 6-204, see Historical and Statutory Notes following § 21-2001.
Uniform Law
This section is based upon § 2-207 of the Uniform Guardianship and Protective Proceedings Act (1982 Act). See 8A Uniform Laws Annotated, Master Edition, or ULA Database on WESTLAW.
(a) Temporary guardians are guardians appointed for a finite period of time. Temporary guardians include emergency guardians, health-care guardians, and provisional guardians. All provisions of this chapter apply to temporary guardians unless otherwise specified.
(b)(1) The court, on appropriate petition, may appoint an emergency guardian, whose authority may not extend beyond 21 days, if:
(A) An incapacitated individual has no guardian;
(B) A life-threatening situation or situation involving emergency care exists; and
(C) There is no other person with authority to act who is reasonably available, mentally capable, and willing to act.
(2) An emergency guardian appointed pursuant to this subsection may exercise those powers granted in the order.
(3) Immediately upon receipt of the petition, the court shall appoint counsel for the individual alleged to be incapacitated and provide notice to the individual alleged to be incapacitated and to interested persons, pursuant to section 21-2042.
(4) The individual alleged to be incapacitated, counsel for that individual, or any other interested person may request a hearing at any time within the period of the emergency guardianship. The hearing shall be held no later than 48 hours after the request.
(5) The court may extend the authority of an emergency guardian appointed pursuant to this subsection to authorize the emergency guardian to serve as a health-care guardian consistent with subsection (c) of this section.
(c)(1) The court, on appropriate petition, may appoint a health-care guardian for the individual alleged to be incapacitated for a specified period of time of up to 90 days if:
(A) An individual has been determined to be incapacitated under section 21- 2204;
(B) The individual has no guardian; and
(C) There is no other person with authority to act who is reasonably available, mentally capable, and willing to act.
(2) The health-care guardian shall have the powers and duties set forth at section 21-2047.02(b).
(3) An appropriate petition shall include the certification of incapacity made pursuant to section 21-2204. Immediately upon receipt of the petition, counsel shall be appointed for the individual alleged to be incapacitated, and notice provided to the individual alleged to be incapacitated and to interested persons, pursuant to section 21-2042. The hearing shall be held within 7 days of receipt of the petition.
(4) The court may extend the authority of a health-care guardian for one additional period of up to 90 days:
(A) Upon determination of continued incapacity and determination of a continued need for the provision of substituted consent for any health-care service, treatment, or procedure pursuant to section 21-2210; or
(B) If a petition for a permanent limited guardian or general guardian, pursuant to section 21-2041, has been filed with the court prior to the expiration of the appointment of the temporary guardian.
(d) If the court finds that any appointed guardian is not effectively performing duties and that the welfare of the ward requires immediate action, it may appoint a provisional guardian, with notice to interested parties within 14 days after the appointment. The provisional guardian shall have the powers set forth in the previous order of appointment for a specified period not to exceed 6 months. The authority of any permanent guardian previously appointed by the court is suspended as long as a provisional guardian has authority.
(Feb. 28, 1987, D.C. Law 6-204, § 2(a), 34 DCR 632; Oct. 22, 2008, D.C. Law 17-249, § 2(f), 55 DCR 9206.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 21-2046.
Effect of Amendments
D.C. Law 17-249 rewrote the section, which had read as follows:
"(a) If an incapacitated individual has no guardian, a life threatening emergency exists, and no other person appears to have authority to act within the circumstances, the court, on appropriate petition, may appoint a temporary guardian whose authority may not extend beyond 15 days and who may exercise those powers granted in the order. Immediately upon receipt of the petition, counsel shall be appointed for the individual alleged to be incapacitated and notice provided to the individual alleged to be incapacitated and to interested persons, pursuant to section 21-2042. The individual alleged to be incapacitated, counsel for that individual, or any other interested person may request a hearing at any time within the period of the temporary guardianship. The hearing shall be held no later than 48 hours after the request.
"(b) If the court finds that an appointed guardian is not effectively performing duties and that the welfare of the incapacitated individual requires immediate action, it may appoint, with notice to interested parties within 14 days after the appointment, a temporary guardian for the incapacitated individual. This temporary guardian shall have the powers set forth in the previous order of appointment for a specified period not to exceed 6 months. The authority of any permanent guardian previously appointed by the court is suspended as long as a temporary guardian has authority.
"(c) The court may remove a temporary guardian at any time. A temporary guardian shall make any report the court requires. In other respects, the provisions of this chapter concerning guardians apply to temporary guardians."
Temporary Amendments of Section
Section 2(b) of D.C. Law 12-249 amended the first sentence of (a) to read as follows:
"If an incapacitated individual has no guardian, a life threatening situation or a situation involving emergency care exists, and no other person appears to have authority to act within the circumstances, the court, on appropriate petition, may appoint a temporary guardian whose authority may not extend beyond 15 days and who may exercise those powers granted in the order."
Section 5(b) of D.C. Law 12-249 provided that this act shall expire after 225 days of its having taken effect.
Section 2 (b) of D.C. Law 13-88 in subsec. (a) substituted for "life threatening emergency" the phrase "life threatening situation or a situation involving emergency care".
Section 5 (b) of D.C. Law 13-88 provides that the act shall expire after 225 days of its having taken effect.
Section 2(b) of D.C. Law 14-64, in subsec. (a), substituted "life-threatening situation or a situation involving emergency care" for "life threatening emergency".
Section 5(b) of D.C. Law 14-64 provides that the act shall expire after 225 days of its having taken effect.
Section 2(b) of D.C. Law 14-241 amended the section by substituting "life-threatening situation or a situation involving emergency care" for "life threatening emergency".
Section 5(b) of D.C. Law 14-241 provides that the act shall expire after 225 days of its having taken effect.
Section 2(b) of D.C. Law 15-98, in subsec. (a), substituted "life-threatening situation or a situation involving emergency care" for "life threatening emergency".
Section 5(b) of D.C. Law 15-98 provides that the act shall expire after 225 days of its having taken effect.
Section 2(b) of D.C. Law 15-245, in subsec. (a), substituted "life-threatening situation or a situation involving emergency care" for "life threatening emergency".
Section 5(b) of D.C. Law 15-245 provides that the act shall expire after 225 days of its having taken effect.
Section 2(b) of D.C. Law 16-46, in subsec. (a), substituted "life-threatening situation or a situation involving emergency care" for "life threatening emergency".
Section 6(b) of D.C. Law 16-46 provides that the act shall expire after 225 days of its having taken effect.
Section 2(f) of D.C. Law 16-194 amended this section to read as follows:
"§ 21-2046. Temporary guardians.
"(a) Temporary guardians are guardians appointed for a finite period of time. Temporary guardians include emergency guardians, health-care guardians, and provisional guardians. All provisions of this chapter apply to temporary guardians unless otherwise specified.
"(b)(1) The court, on appropriate petition, may appoint an emergency guardian, whose authority may not extend beyond 15 days, if:
"(A) An incapacitated individual has no guardian;
"(B) A life-threatening situation or situation involving emergency care exists; and
"(C) No other person appears to have authority to act within the circumstances.
"(2) An emergency guardian appointed pursuant to this subsection may exercise those powers granted in the order
"(3) Immediately upon receipt of the petition, the court shall appoint counsel for the individual alleged to be incapacitated and provide notice to the individual alleged to be incapacitated and to interested persons, pursuant to section 21-2042.
"(4) The individual alleged to be incapacitated, counsel for that individual, or any other interested person may request a hearing at any time within the period of the temporary guardianship. The hearing shall be held no later than 48 hours after the request.
"(5) The court may extend the authority of an emergency guardian appointed pursuant to this subsection to authorize the emergency guardian to serve as a health-care guardian consistent with subsection (c) of this section.
"(c)(1) The court, on appropriate petition, may appoint a health-care guardian for the individual alleged to be incapacitated for a specified period of time of up to 90 days if:
"(A) An individual has been determined to be incapacitated under section 21- 2204;
"(B) The individual has no guardian; and
"(C) No other person appears to have authority to act within the circumstances.
"(2) The health-care guardian shall have the powers and duties set forth at section 21-2047b(b).
"(3) An appropriate petition shall include the certification of incapacity made pursuant to section 21-2204. Immediately upon receipt of the petition, counsel shall be appointed for the individual alleged to be incapacitated, and notice provided to the individual alleged to be incapacitated and to interested persons, pursuant to section 21-2042. The hearing shall be held within 7 days of receipt of the petition.
"(4) The court may extend the authority of a health-care guardian for one additional period of up to 90 days:
"(A) Upon determination of continued incapacity and determination of a continued need for the provision of substituted consent for any health-care service, treatment, or procedure pursuant to section 21-2210; or
"(B) If a petition for a permanent limited guardian or general guardian, pursuant to section 21-2041, has been filed with the court prior to the expiration of the appointment of the temporary guardian.
"(d) If the court finds that any appointed guardian is not effectively performing duties and that the welfare of the ward requires immediate action, it may appoint, with notice to interested parties within 14 day after the appointment, a provisional guardian. The provisional guardian shall have the powers set forth in the previous order of appointment for a specified period not to exceed 6 months. The authority of any permanent guardian previously appointed by the court is suspended as long as a provisional guardian has authority."
Section 6(b) of D.C. Law 16-194 provides that the act shall expire after 225 days of its having taken effect.
Section 2(f) of D.C. Law 17-100 amended this section to read as follows:
"§ 21-2046. Temporary guardians.
"(a) Temporary guardians are guardians appointed for a finite period of time. Temporary guardians include emergency guardians, health-care guardians, and provisional guardians. All provisions of this chapter apply to temporary guardians unless otherwise specified.
"(b)(1) The court, on appropriate petition, may appoint an emergency guardian, whose authority may not extend beyond 15 days, if:
"(A) An incapacitated individual has no guardian;
"(B) A life-threatening situation or situation involving emergency care exists; and
"(C) No other person appears to have authority to act within the circumstances.
"(2) An emergency guardian appointed pursuant to this subsection may exercise those powers granted in the order.
"(3) Immediately upon receipt of the petition, the court shall appoint counsel for the individual alleged to be incapacitated and provide notice to the individual alleged to be incapacitated and to interested persons, pursuant to section 21-2042.
"(4) The individual alleged to be incapacitated, counsel for that individual, or any other interested person may request a hearing at any time within the period of the temporary guardianship. The hearing shall be held no later than 48 hours after the request.
"(5) The court may extend the authority of an emergency guardian appointed pursuant to this subsection to authorize the emergency guardian to serve as a health-care guardian consistent with subsection (c) of this section.
"(c)(1) The court, on appropriate petition, may appoint a health-care guardian for the individual alleged to be incapacitated for a specified period of time of up to 90 days if:
"(A) An individual has been determined to be incapacitated under section 21- 2204;
"(B) The individual has no guardian; and
"(C) No other person appears to have authority to act within the circumstances.
"(2) The health-care guardian shall have the powers and duties set forth at section 21-2047b(b).
"(3) An appropriate petition shall include the certification of incapacity made pursuant to section 21-2204. Immediately upon receipt of the petition, counsel shall be appointed for the individual alleged to be incapacitated, and notice provided to the individual alleged to be incapacitated and to interested persons, pursuant to section 21-2042. The hearing shall be held within 7 days of receipt of the petition.
"(4) The court may extend the authority of a health-care guardian for one additional period of up to 90 days:
"(A) Upon determination of continued incapacity and determination of a continued need for the provision of substituted consent for any health-care service, treatment, or procedure pursuant to section 21-2210; or
"(B) If a petition for a permanent limited guardian or general guardian, pursuant to section 21-2041, has been filed with the court prior to the expiration of the appointment of the temporary guardian.
"(d) If the court finds that any appointed guardian is not effectively performing duties and that the welfare of the ward requires immediate action, it may appoint, with notice to interested parties within 14 day after the appointment, a provisional guardian. The provisional guardian shall have the powers set forth in the previous order of appointment for a specified period not to exceed 6 months. The authority of any permanent guardian previously appointed by the court is suspended as long as a provisional guardian has authority."
Section 6(b) of D.C. Law 17-100 provides that the act shall expire after 225 days of its having taken effect.
Emergency Act Amendments
For temporary amendment of section, see § 2(b) of the Mentally Retarded Citizens Substituted Consent for Health Care Decisions Emergency Amendment Act of 1998 (D.C. Act 12-554, December 30, 1998, 45 DCR 566).
For temporary amendment of section, see § 2(b) of the Mentally Retarded Citizens Substituted Consent for Health Care Decisions Congressional Review Emergency Amendment Act of 1999 (D.C. Act 13-56, April 16, 1999, 46 DCR 4289).
For temporary (90-day) amendment of section, see § 2(b) of the Mentally Retarded Citizens Substituted Consent for Health Care Decisions Congressional Review Emergency Amendment Act of 1999 (D.C. Act 13-56, April 16, 1999, 46 DCR 3858).
For temporary (90-day) amendment of section, see § 2(b) of the Citizens with Mental Retardation Substituted Consent for Health Care Decisions Emergency Amendment Act of 1999 (D.C. Act 13-202, December 1, 1999, 47 DCR 134).
For temporary (90-day) amendment of section, see § 2(b) of the Citizens with Mental Retardation Substituted Consent for Health Care Decisions Congressional Review Emergency Amendment Act of 2000 (D.C. Act 13-285, March 7, 2000, 47 DCR 2033).
For temporary (90-day) amendment of section, see § 2(b) of the Citizens with Mental Retardation Substituted Consent for Health Care Decisions Congressional Review Emergency Amendment Act of 2000 (D.C. Act 13-455, November 7, 2000, 47 DCR 9415).
For temporary (90 day) amendment of section, see § 2(b) of Citizens with Mental Retardation Substituted Consent for Health Care Decisions Congressional Review Emergency Amendment Act of 2001 (D.C. Act 14-3, February 13, 2001, 48 DCR 2251).
For temporary (90 day) amendment of section, see § 2(b) of Citizens with Mental Retardation Substituted Consent for Health Care Decisions Congressional Review Emergency Amendment Act of 2002 (D.C. Act 14-246, January 28, 2002, 49 DCR 1040).
For temporary (90 day) amendment of section, see § 2(b) of Citizens with Mental Retardation Substituted Consent for Health Care Decisions Emergency Amendment Act of 2002 (D.C. Act 14-514, October 23, 2002, 49 DCR 10480).
For temporary (90 day) amendment of section, see § 2(b) of Citizens with Mental Retardation Substituted Consent for Health Care Decisions Second Congressional Review Emergency Amendment Act of 2002 (D.C. Act 14-602, January 7, 2003, 50 DCR 684).
For temporary (90 day) amendment of section, see § 2(b) of Citizens with Mental Retardation Substituted Consent for Health Care Decisions Emergency Amendment Act of 2003 (D.C. Act 15-234, November 25, 2003, 50 DCR 10734).
For temporary (90 day) amendment of section, see § 2(b) of Citizens with Mental Retardation Substituted Consent for Health Care Decisions Congressional Review Emergency Amendment Act of 2004 (D.C. Act 15-359, February 19, 2004, 51 DCR 2578).
For temporary (90 day) amendment of section, see § 2(b) of Citizens with Mental Retardation Substituted for Health Care Decisions Emergency Amendment Act of 2004 (D.C. Act 15-558, October 26, 2004, 51 DCR 10375).
For temporary (90 day) amendment of section, see § 2(b) of Citizens with Mental Retardation Substituted Consent for Health Care Decisions Congressional Review Emergency Amendment Act of 2005 (D.C. Act 16-6, January 19, 2005, 52 DCR 2683).
For temporary (90 day) amendment of section, see § 2(b) of Health-Care Decisions for Persons with Mental Retardation and Developmental Disabilities Emergency Amendment Act of 2005 (D.C. Act 16-190, October 28, 2005, 52 DCR 10021).
For temporary (90 day) amendment of section, see § 2(b) of Health-Care Decisions for Persons with Mental Retardation and Development Disabilities Congressional Review Emergency Amendment Act of 2006 (D.C. Act 16-262, January 26, 2006, 53 DCR 795).
For temporary (90 day) amendment of section, see § 2(f) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Amendment Act of 2006 (D.C. Act 16-480, September 25, 2006, 53 DCR 7940).
For temporary (90 day) amendment of section, see § 2(f) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2006 (D.C. Act 16-566, December 19, 2006, 53 DCR 10272).
For temporary (90 day) amendment of section, see § 2(f) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2007 (D.C. Act 17-161, October 18, 2007, 54 DCR 10932).
For temporary (90 day) amendment of section, see § 2(f) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2008 (D.C. Act 17-245, January 23, 2008, 55 DCR 1230).
For temporary (90 day) amendment, see § 2(f) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2008 (D.C. Act 17-492, August 4, 2008, 55 DCR 9167).
Legislative History of Laws
For legislative history of D.C. Law 12-249, see Historical and Statutory Notes following § 21-2011.
For Law 14-64, see notes following § 21-2011.
For Law 14-241, see notes following § 21-2011.
For Law 15-98, see notes following § § 21-2011.
For Law 15-245, see notes following § 21-2011.
For Law 17-249, see notes following § 21-2002.
Uniform Law
This section is based upon § 2-208 of the Uniform Guardianship and Protective Proceedings Act (1982 Act). See 8A Uniform Laws Annotated, Master Edition, or ULA Database on WESTLAW.
Except as limited pursuant to section 21-2044, a general guardian or a limited guardian of an incapacitated individual is responsible for care, custody, and control of the ward, but is not personally liable to third persons by reason of that responsibility for acts of the ward.
(a) In particular and without qualifying the foregoing, a general guardian or limited guardian shall:
(1) 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;
(2) Take reasonable care of the ward's personal effects and commence protective proceedings, if necessary, to protect other property of the ward;
(3) Apply any available money of the ward to the ward's current needs for support, care, habilitation, and treatment;
(4) 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;
(5) 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;
(6) 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;
(7) Include the ward in the decision-making process to the maximum extent of the ward's ability; and
(8) 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.
(b) A general guardian or limited guardian may:
(1) 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;
(2) 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;
(3) 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;
(4) 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;
(5) 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, effective March 3, 1979 (D.C. Law 2-136; § 7-1201.01 et seq.); and
(6) If reasonable under all of the circumstances, delegate to the ward certain responsibilities for decisions affecting the ward's well-being.
(c) [Repealed].
(d) A guardian is entitled to reasonable compensation for services as guardian and to reimbursement for room, board, and clothing personally provided to the ward, but only as approved by order of the court pursuant to section 21- 2060(a).
(Feb. 28, 1987, D.C. Law 6-204, § 2(a), 34 DCR 632; May 10, 1989, D.C. Law 7-231, § 27, 36 DCR 492; Sept. 22, 1989, D.C. Law 8-34, § 2(h), 36 DCR 5035; Oct. 22, 2008, D.C. Law 17-249, § 2(g), 55 DCR 9206.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 21-2047.
Effect of Amendments
D.C. Law 17-249, rewrote the section name line, which had read as follows: "General powers and duties of guardian."; in the lead-in language of the section and subsecs. (a) and (b), substituted "a general guardian or a limited guardian" for "guardian"; in subsec. (a)(4), deleted "and" from the end; in subsec. (a)(5), substituted "on any order of the court, but at least semiannually;" for "as required by court rule, but at least semi-annually."; added subsecs. (a)(6), (7), (8); and repealed subsec. (c), which had read as follows:
"(c) A guardian shall not have the power:
"(1) 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;
"(2) 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;
"(3) 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;
"(4) 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 the Mentally Retarded Citizens Constitutional Rights and Dignity Act of 1978, effective November 8, 1978 (D.C. Law 2-137; D.C. Official Code, § 7-1301.01 et seq.);
"(5) To consent to the waiver of any substantive or procedural right of the incapacitated individual in any proceeding arising from an insanity acquittal; or
"(6) 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."
Temporary Amendments of Section
Section 2(g) of D.C. Law 16-194 amended the section heading to read as follows: "§ 21-2047. Powers and duties of general guardian and limited guardian."; in the lead-in text substituted "a general guardian or a limited guardian" for "guardian"; in subsec. (a), in the lead-in text, substituted "general guardian or limited guardian" for "guardian", in par. (4) struck the word "and" at the end, in par. (5) substituted "on any order of the court, but at least semi-annually;" for "as required by court rule, but at least semi-annually.", and added pars. (6) and (7) to read as follows:
"(6) 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; and
"(7) Encourage the ward to participate with the guardian in the decision-making process to the maximum extent of the ward's ability in order to 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."
; in subsec. (b), in the introductory paragraph, substituted "general guardian or limited guardian" for "guardian"; and repealed subsec. (c).
Section 6(b) of D.C. Law 16-194 provides that the act shall expire after 225 days of its having taken effect.
Section 2(g) of D.C. Law 17-100 amended the section heading to read as follows: "§ 21-2047. Powers and duties of general guardian and limited guardian."; in the lead-in text, substituted "a general guardian or a limited guardian" for "guardian"; in subsec. (a), in the lead-in text, substituted "general guardian or limited guardian" for "guardian", in par. (4), deleted "and" at the end, in par. (5), substituted "on any order of the court, but at least semiannually;" for "as required by court rule, but at least semi-annually.", and added pars. (6), (7), and (8) to read as follows:
"(6) 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;
"(7) Include the ward in the decision-making process to the maximum extent of the ward's ability; and
"(8) Encourage the individual 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."
; in subsec. (b), in the lead-in text, substituted "general guardian or limited guardian" for "guardian"; and repealed subsec. (c).
Section 6(b) of D.C. Law 17-100 provides that the act shall expire after 225 days of its having taken effect.
Emergency Act Amendments
For temporary (90 day) amendment of section, see § 2(g) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Amendment Act of 2006 (D.C. Act 16-480, September 25, 2006, 53 DCR 7940).
For temporary (90 day) addition of sections, see § 2(h) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Amendment Act of 2006 (D.C. Act 16-480, September 25, 2006, 53 DCR 7940).
For temporary (90 day) amendment of section, see § 2(g) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2006 (D.C. Act 16-566, December 19, 2006, 53 DCR 10272).
For temporary (90 day) addition of sections, see § 2(h) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2006 (D.C. Act 16-566, December 19, 2006, 53 DCR 10272).
For temporary (90 day) amendment of section, see § 2(g) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2007 (D.C. Act 17-161, October 18, 2007, 54 DCR ).
For temporary (90 day) additions, see § 2(h) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2007 (D.C. Act 17- 161, October 18, 2007, 54 DCR 10932).
For temporary (90 day) amendment of section, see § 2(g) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2008 (D.C. Act 17-245, January 23, 2008, 55 DCR 1230).
For temporary (90 day) additions, see § 2(h) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2008 (D.C. Act 17-245, January 23, 2008, 55 DCR 1230).
For temporary (90 day) amendment, see § 2(g) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2008 (D.C. Act 17-492, August 4, 2008, 55 DCR 9167).
For temporary (90 day) additions, see § 2(h) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2008 (D.C. Act 17-492, August 4, 2008, 55 DCR 9167).
Legislative History of Laws
For legislative history of D.C. Law 6-204, see Historical and Statutory Notes following § 21-2001.
Law 7-231, the "Technical Amendments Act of 1988," was introduced in Council and assigned Bill No. 7-586, which was referred to the Committee of the Whole. The Bill was adopted on first and second readings on November 29, 1988, and December 13, 1988, respectively. Signed by the Mayor on January 6, 1989, it was assigned Act No. 7-285 and transmitted to both Houses of Congress for its review.
For legislative history of D.C. Law 8-34, see Historical and Statutory Notes following § 21-2002.
For Law 17-249, see notes following § 21-2002.
Uniform Law
This section is based upon § 2-209 of the Uniform Guardianship and Protective Proceedings Act (1982 Act). See 8A Uniform Laws Annotated, Master Edition, or ULA Database on WESTLAW.
A guardian shall not have the power:
(1) 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;
(2) 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;
(3) 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;
(4) 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;
(5) To consent to the waiver of any substantive or procedural right of the incapacitated individual in any proceeding arising from an insanity acquittal; or
(6) 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.
(Oct. 22, 2008, D.C. Law 17-249, § 2(h), 55 DCR 9206.)
HISTORICAL AND STATUTORY NOTES
Temporary Addition of Section
Section 2(h) of D.C. Law 16-194 added a section to read as follows:
"§ 21-2047a. Limitations on temporary, limited, and general guardians.
"A guardian shall not have the power:
"(1) 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;
"(2) 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;
"(3) 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;
"(4) 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;
"(5) To consent to the waiver of any substantive or procedural right of the incapacitated individual in any proceeding arising from an insanity acquittal; or
"(6) 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.
Section 6(b) of D.C. Law 16-194 provides that the act shall expire after 225 days of its having taken effect.
Section 2(h) of D.C. Law 17-100 added a section to read as follows:
"§ 21-2047a. Limitations on temporary, limited, and general guardians.
"A guardian shall not have the power:
"(1) 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;
"(2) 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;
"(3) 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;
"(4) 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;
"(5) To consent to the waiver of any substantive or procedural right of the incapacitated individual in any proceeding arising from an insanity acquittal; or
"(6) 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.
"(3) Have the status of a legal representative under Chapter 12 of Title 7."
Section 6(b) of D.C. Law 17-100 provides that the act shall expire after 225 days of its having taken effect.
Emergency Act Amendments
For temporary (90 day) addition, see § 2(h) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Amendment Act of 2006 (D.C. Act 16-480, September 25, 2006, 53 DCR 7940).
For temporary (90 day) addition, see § 2(h) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2006 (D.C. Act 16-566, December 19, 2006, 53 DCR 10272).
For temporary (90 day) addition, see § 2(h) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2007 (D.C. Act 17- 161, October 18, 2007, 54 DCR 10932).
For temporary (90 day) addition, see § 2(h) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2008 (D.C. Act 17-245, January 23, 2008, 55 DCR 1230).
For temporary (90 day) addition, see § 2(h) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2008 (D.C. Act 17-492, August 4, 2008, 55 DCR 9167).
Legislative History of Laws
For Law 17-249, see notes following § 21-2002.
(a) Except as limited by sections 21-2046 and 21-2047.01, an emergency guardian or health-care guardian is responsible for providing substituted consent for an incapacitated individual and for any other duties authorized by the court, but is not personally liable to third persons by reason of that responsibility or acts of the incapacitated individual.
(b) An emergency or health-care guardian shall:
(1) Become or remain personally acquainted with the ward and maintain sufficient contact with the ward to know of his or her capacities, limitations, needs, opportunities, and physical and mental health;
(2) 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;
(3) Include the ward in the decision-making process to the maximum extent of the ward's ability.
(4) Encourage the individual 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; and
(5) Make any report the court requires.
(c) An emergency or health-care guardian may:
(1) Grant, refuse, or withdraw consent to medical examination and health-care treatment for an individual who has been deemed incapacitated pursuant to section 21-2204;
(2) Obtain medical records for the purpose of providing substituted consent pursuant to section 21-2210; and
(3) Have the status of a legal representative under Chapter 12 of Title 7.
(Oct. 22, 2008, D.C. Law 17-249, § 2(h), 55 DCR 9206.)
HISTORICAL AND STATUTORY NOTES
Temporary Addition of Section
Section 2(h) of D.C. Law 16-194 added a section to read as follows:
"§ 21-2047b. Powers and duties of emergency and health-care guardians.
"(a) Except as limited by sections 21-2046 and 21-2047a, an emergency guardian or health-care guardian is responsible for providing substituted consent for an incapacitated individual and for any other duties authorized by the court, but is not personally liable to third persons by reason of that responsibility or acts of the incapacitated individual.
"(b) An emergency or health-care guardian shall:
"(1) Become or remain personally acquainted with the ward and maintain sufficient contact with the ward to know of his or her capacities, limitations, needs, opportunities, and physical and mental health;
"(2) 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;
"(3) Encourage the ward to participate with the guardian in the decision-making process to the maximum extent of the ward's ability in order to encourage the individual 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; and
"(4) Make any report the court requires.
"(c) An emergency or health-care guardian may:
"(1) Grant, refuse, or withdraw consent to medical examination and health-care treatment for which the individual has been deemed incapacitated pursuant to section 21-2204;
"(2) Obtain medical records for the purpose of providing substituted consent pursuant to section 21-2210; and
"(3) Have the status of a legal representative under Chapter 12 of Title 7."
Section 6(b) of D.C. Law 16-194 provides that the act shall expire after 225 days of its having taken effect.
Section 2(h) of D.C. Law 17-100 added a section to read as follows:
"§ 21-2047b. Powers and duties of emergency and health-care guardians.
"(a) Except as limited by sections 21-2046 and 21-2047a, an emergency guardian or health-care guardian is responsible for providing substituted consent for an incapacitated individual and for any other duties authorized by the court, but is not personally liable to third persons by reason of that responsibility or acts of the incapacitated individual.
"(b) An emergency or health-care guardian shall:
"(1) Become or remain personally acquainted with the ward and maintain sufficient contact with the ward to know of his or her capacities, limitations, needs, opportunities, and physical and mental health;
"(2) 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;
"(3) Include the ward in the decision-making process to the maximum extent of the ward's ability;
"(4) Encourage the individual 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; and
"(5) Make any report the court requires.
"(c) An emergency or health-care guardian may:
"(1) Grant, refuse, or withdraw consent to medical examination and health-care treatment for an individual who has been deemed incapacitated pursuant to section 21-2204;
"(2) Obtain medical records for the purpose of providing substituted consent pursuant to section 21-2210; and
"(3) Have the status of a legal representative under Chapter 12 of Title 7."
Section 6(b) of D.C. Law 17-100 provides that the act shall expire after 225 days of its having taken effect.
Emergency Act Amendments
For temporary (90 day) addition, see § 2(h) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Amendment Act of 2006 (D.C. Act 16-480, September 25, 2006, 53 DCR 7940).
For temporary (90 day) addition, see § 2(h) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2006 (D.C. Act 16-566, December 19, 2006, 53 DCR 10272).
For temporary (90 day) addition, see § 2(h) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2007 (D.C. Act 17- 161, October 18, 2007, 54 DCR 10932).
For temporary (90 day) addition, see § 2(h) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2008 (D.C. Act 17-245, January 23, 2008, 55 DCR 1230).
For temporary (90 day) addition, see § 2(h) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2008 (D.C. Act 17-492, August 4, 2008, 55 DCR 9167).
Legislative History of Laws
For Law 17-249, see notes following § 21-2002.
The authority and responsibility of a guardian of an incapacitated individual terminates upon the death of the guardian or ward, the determination of incapacity of the guardian, or the removal or resignation of the guardian as provided in section 21-2049. The termination does not affect a guardian's liability for prior acts or the obligation to account for funds and assets of the ward.
(Feb. 28, 1987, D.C. Law 6-204, § 2(a), 34 DCR 632.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 21-2048.
Legislative History of Laws
For legislative history of D.C. Law 6-204, see Historical and Statutory Notes following § 21-2001.
Uniform Law
This section is based upon § 2-210 of the Uniform Guardianship and Protective Proceedings Act (1982 Act). See 8A Uniform Laws Annotated, Master Edition, or ULA Database on WESTLAW.
(a)(1) On petition of the guardian, the court, after a hearing, may accept a resignation of a guardian.
(2) The court may remove a temporary guardian at any time.
(3) On petition of the ward or any interested person, or on the court's own motion, the court, after a hearing, may remove a limited guardian or a general guardian for any of the following reasons:
(A) Failure to discharge his or her duties, including failure to conform 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, to make a decision on the basis of the ward's best interests, pursuant to section 21-2047(a)(6) or 21-2047.02(b)(2);
(B) Abuse of his or her powers;
(C) Failure to comply with any order of the court;
(D) Failure to educate or provide for the ward as liberally as the ward's financial situation permits, if education and financial management fall within the scope of the guardianship;
(E) Interference with the ward's progress or participation in programs in the community; or
(F) For any other good cause.
(b) The ward or any person interested in the welfare of the ward may petition for an order that the ward is no longer incapacitated and for termination of the guardianship. A request for an order may also be made informally to the court and any individual who knowingly interferes with transmission of the request may be adjudged guilty of contempt of court. A ward seeking termination is entitled to the same rights and procedures as in an original proceeding for appointment of a guardian.
(c) Upon removal, resignation, or death of the guardian, or if the guardian is determined to be incapacitated, the court may appoint a successor guardian and make any other appropriate order. Before appointing a successor guardian, or ordering that a ward's incapacity has terminated, the court shall follow the same procedures to safeguard the rights of the ward that apply to a petition for appointment of a guardian.
(Feb. 28, 1987, D.C. Law 6-204, § 2(a), 34 DCR 632; Oct. 22, 2008, D.C. Law 17-249, § 2(i), 55 DCR 9206.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 21-2049.
Effect of Amendments
D.C. Law 17-249 rewrote subsec. (a), which had read as follows:
"(a) On petition of the ward or any person interested in the ward's welfare, the court, after hearing, may remove a guardian if removal is in the best interest of the ward. On petition of the guardian, the court, after hearing, may accept a resignation."
Temporary Amendments of Section
Section 2(i) of D.C. Law 16-194 amended subsec. (a) to read as follows:
"(a)(1) On petition of the guardian, the court, after hearing, may accept a resignation of a guardian.
"(2) The court may remove a temporary guardian at any time.
"(3) On petition of the ward or any interested person, or on the court's own motion, the court, after hearing, may remove a limited guardian or a general guardian for any of the following reasons:
"(A) Failure to discharge his or her duties, including failure to conform 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, to make a decision on the basis of the ward's best interests, pursuant to section 21-2047(a)(6) or 21-2047b(b)(2);
"(B) Abuse of his or her powers;
"(C) Failure to comply with any order of the court;
"(D) Failure to educate or provide for the ward as liberally as the ward's financial situation permits, if education and financial management fall within the scope of the guardianship;
"(E) Interference with the ward's progress or participation in programs in the community; or
"(F) For any other good cause."
Section 6(b) of D.C. Law 16-194 provides that the act shall expire after 225 days of its having taken effect.
Section 2(i) of D.C. Law 17-100 amended subsec. (a) to read as follows:
"(a)(1) On petition of the guardian, the court, after a hearing, may accept a resignation of a guardian.
"(2) The court may remove a temporary guardian at any time.
"(3) On petition of the ward or any interested person, or on the court's own motion, the court, after a hearing, may remove a limited guardian or a general guardian for any of the following reasons:
"(A) Failure to discharge his or her duties, including failure to conform 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, to make a decision on the basis of the ward's best interests, pursuant to section 21-2047(a)(6) or 21-2047b(b)(2);
"(B) Abuse of his or her powers;
"(C) Failure to comply with any order of the court;
"(D) Failure to educate or provide for the ward as liberally as the ward's financial situation permits, if education and financial management fall within the scope of the guardianship;
"(E) Interference with the ward's progress or participation in programs in the community; or
"(F) For any other good cause."
Section 6(b) of D.C. Law 17-100 provides that the act shall expire after 225 days of its having taken effect.
Emergency Act Amendments
For temporary (90 day) amendment of section, see § 2(i) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Amendment Act of 2006 (D.C. Act 16-480, September 25, 2006, 53 DCR 7940).
For temporary (90 day) amendment of section, see § 2(i) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2006 (D.C. Act 16-566, December 19, 2006, 53 DCR 10272).
For temporary (90 day) amendment of section, see § 2(i) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2007 (D.C. Act 17-161, October 18, 2007, 54 DCR 10932).
For temporary (90 day) amendment of section, see § 2(i) of Health-Care Decisions for Persons with Developmental Disabilities Congressional Review Emergency Amendment Act of 2008 (D.C. Act 17-245, January 23, 2008, 55 DCR 1230).
For temporary (90 day) amendment, see § 2(i) of Health-Care Decisions for Persons with Developmental Disabilities Emergency Act of 2008 (D.C. Act 17-492, August 4, 2008, 55 DCR 9167).
Legislative History of Laws
For legislative history of D.C. Law 6-204, see Historical and Statutory Notes following § 21-2001.
For Law 17-249, see notes following § 21-2002.
Uniform Law
This section is based upon § 2-211 of the Uniform Guardianship and Protective Proceedings Act (1982 Act). See 8A Uniform Laws Annotated, Master Edition, or ULA Database on WESTLAW.
