DC Code section 21-211 provides the legal standard for incapacity. Essentially, for an adult that is over the age of 18, someone whose “ability to receive and evaluate information 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, and therapeutic needs without court-ordered assistance or the appointment of a guardian or a conservator” is the standard for incapacity.
A person who has additional questions regarding the process of proving incapacity in Washington, DC should contact a DC guardianship lawyer to discuss. Call today to schedule a free initial consultation.
Type of Evidence to Prove Incapacity in DC
Generally, an alleged incapacitated adult in Washington, DC is examined by their treating physicians, who provides a report of the detailing the loss of capacity. Sometimes the report is attached to the initial petition for conservatorship or guardianship, which a DC guardianship lawyer can help someone organize. In addition to the initial report, the court may require the use of experts like psychiatrists or treating doctors who are experts in the type of incapacity that the ward may have to examine the adult and provide the court further information regarding the loss of capacity. Family members, friends, and caretakers may also sometimes testify to the lack of capacity or the reasons why a petitioner may be the best person to serve as the guardian or the conservator.
Admissibility of Evidence Showing Poor Decision-Making
It is part of what may be used to show incapacity. Family members, friends, or caretakers may provide evidence as to how someone’s poor decision-making in the past reflects a lack of capacity to make decisions. Often, poor decision making alone may not be enough to show a lack of capacity in DC. For example, an adult may make poor investment decisions that results in a loss of assets, but may still have capacity to make financial and legal decisions on his or her own behalf.
Generally, a contested guardianship or conservatorship occurs when the ward, the attorney on behalf of the ward, a family member, or another interested person contests the assertion that the subject of the proceeding actually lacks capacity or that the person petitioning to serve as a guardian or conservator is the best person to serve.
If the alleged ward is contesting, he or she will file an answer through the attorney appointed on his or her behalf stating that they contest the need for a guardian or a conservator or the selection of the petitioning person to serve as guardian or conservator. Other interested persons may also object to the appointments by filing their objections with the court. Someone who is interested in becoming a guardian and is now facing a contested guardianship should seek to speak with a guardianship lawyer in DC.
Proving Incapacity During Contested Guardianship
The practice for proving lack of capacity does not necessarily change, rather additional evidence and testimony may be required to present during the trial before the judge. The process for contested guardianships is often longer, and more costly to the petitioner and the ward.
Evaluation Process for Proving Incapacity
The guardian or ward is visited by the guardian ad litem who will interview the ward and determine whether the ward wishes to contest the guardianship. Generally, if an independent examiner is appointed, they will examine the capacity of the ward. They will use different tools and tests to examine the scope of the capacity of the ward.
Contested guardianships in DC can be costly and timely matters. The case will usually be set for trial and the capacity of the ward will be determined through presentation of evidence on both sides of the case. Psychiatrist or treating physicians may interview the alleged ward further by presenting their analysis of the ward’s capacity.
Differences in Process for Conservators and Guardians in DC
The pleadings required to appoint only a guardian or conservator may differ. However, in both proceedings, the alleged ward’s lack of capacity must be presented to the court. It is possible that an alleged ward may lack the capacity to make financial and legal decisions, but retains the capacity to make health care and living decisions. Each case is different depending on the facts of the case, and the unique nature of the ward’s capacity. An attorney with experience handling guardianship or conservatorship cases will know how to proceed for the different types of cases that may occur. He or she can provide assistance throughout the process. Having knowledge and experience on your side is beneficial in cases that relate to the guardianship of another person.