Rule 302 - Proceeding to Appoint a Temporary Guardian(a) IN GENERAL. A proceeding to appoint a temporary guardian, including an emergency guardian, a health-care guardian, or a provisional guardian, is commenced by filing a petition on the form maintained by the Register of Wills or a form that is substantially similar in format and content.(b) EMERGENCY GUARDIAN. (1)In General. A petition to appoint an emergency guardian must be accompanied by the following documents on forms maintained by the Register of Wills or forms that are substantially similar in format and content: (A) a proposed order to appoint counsel and any guardian ad litem, examiner, or visitor, for the individual alleged to be incapacitated; and(B) a proposed order to appoint the emergency guardian.(2)Counsel. Immediately upon receipt of the petition, the court must appoint counsel to represent the individual alleged to be incapacitated. If the petition discloses that the subject is represented by counsel, the court must appoint that person unless there is good cause to appoint a different attorney.(3) Service and Notice. (A)Service. The petitioner must serve the petition, order appointing counsel, any order appointing a guardian ad litem, examiner, or visitor, and a notice of the right to request a hearing, in the manner provided by and on the persons listed in Rule 301(d).(B)Immediate Notice. The petitioner must provide notice of the petition and of the right to request a hearing to counsel for the individual alleged to be incapacitated and any interested persons, in a manner reasonably calculated to provide immediate notification, including by telephone or electronic communication.(C)Proof of Service. An affidavit or declaration of service must be filed.(4)Appointing an Emergency Guardian. The court may schedule a hearing on the petition or may appoint an emergency guardian without a hearing. If the court appoints an emergency guardian without a hearing, the court must state the reasons in the appointment order.(5)Post-Appointment Hearing. The ward, counsel for the ward, or any other party or interested person may request a hearing at any time before the emergency guardian's appointment expires. No specific form is required for a request for a hearing. The hearing must be held no later than 48 hours after the request is filed. The court must provide immediate notice of the hearing to the petitioner and to all parties and interested persons, by telephone or electronic communication.(6)Service of Order Appointing Emergency Guardian. The court must provide a certified copy of the order of appointment to the emergency guardian, and must mail a copy of the order of appointment to all other parties and interested persons.(7)Expiration of Appointment. An emergency guardian's appointment is limited to 21 days and may not be extended. Upon petition, the emergency guardian may be appointed as a heath-care guardian.(c) HEALTH-CARE GUARDIAN. (1)In General. A petition to appoint a health-care guardian must be accompanied by the following documents:(A) in accordance with D.C. Code § 21-2204 (2012 Repl.), two certifications that the individual alleged to be incapacitated lacks the mental capacity to make a health-care decision;(B) a proposed order to appoint counsel and any guardian ad litem, examiner, or visitor, for the individual alleged to be incapacitated, on a form maintained by the Register of Wills or a form that is substantially similar in format and content; and(C) a proposed order to appoint the health-care guardian, on a form maintained by the Register of Wills or a form that is substantially similar in format and content.(2)Counsel. Immediately upon receipt of the petition, the court must appoint counsel to represent the individual alleged to be incapacitated. If the petition discloses that the subject is represented by counsel, the court must appoint that person unless there is good cause to appoint a different attorney.(3) Service. (A)In General. The petitioner must serve the petition, order appointing counsel, any order appointing a guardian ad litem, examiner, or visitor, and a notice of hearing, in the manner provided by and on the persons listed in Rule 301(d).(B)Proof of Service. An affidavit or declaration of service must be filed no later than the time of the hearing.(4)Hearing. A hearing on the petition for appointment of a health-care guardian must be held no later than 7 days after the petition is filed.(5)Service of Order Appointing Health-Care Guardian. The court must provide a certified copy of the order of appointment to the health-care guardian, and must mail a copy of the order of appointment to all other parties and interested persons.(6)Extending Appointment of Health-Care Guardian. (A)In General. On petition or on its own initiative, the court may extend the healthcare guardian's appointment for one additional period of up to 90 days because of continued incapacity and need for the provision of substituted consent or because a petition for the appointment of a permanent guardian is pending.(B)Petition. A petition to extend the appointment of a health-care guardian must be filed no later than 7 days prior to the expiration of the appointment. The petition must be filed on the form maintained by the Register of Wills or a form that is substantially similar in format and content.(C)Additional Documents. The petition must be accompanied by the following documents on forms maintained by the Register of Wills or forms that are substantially similar in format and content: (ii) a proposed order to appoint counsel and any guardian ad litem, examiner, or visitor, for the ward; and(iii) a proposed order to extend the appointment of the health-care guardian.(D)Service. The petitioner must serve a copy of the petition, order of appointment of counsel, and notice of a hearing in the manner provided by and on the individuals listed in Rule 301(d). An affidavit or declaration of service must be filed no later than the date set for the hearing.(E)Hearing. A hearing must be scheduled no later than the date on which the original appointment expires.(d) PROVISIONAL GUARDIAN. (1)In General. On petition or on its own initiative, the court may suspend the authority of an appointed guardian and appoint a provisional guardian if the appointed guardian is not effectively performing the guardian's duties and the welfare of the ward requires immediate action.(2)Notice of Appointment of Provisional Guardian. The Register of Wills must give notice of the order appointing a provisional guardian to the ward, the suspended guardian, and all other parties and interested persons within 14 days after the order is entered.(3)Authority and Duration. The provisional guardian has the authority set forth in the previous order of appointment. The provisional guardian's appointment is limited to 6 months.Adopted by Order dated March 4, 2022, effective 8/22/2022.COMMENT
This rule implements D.C. Code § 21-2046 (2012 Repl.).
The appointment of a provisional guardian is reserved for extraordinary situations requiring immediate action by the court, and is not the means to seek removal, in nonemergency situations, of a guardian who is allegedly negligent in the performance of his or her duties. In non-emergency situations, a petition under Rule 301 is appropriate. After the appointment of a provisional guardian, the procedures provided for a petition subsequent to the appointment of a guardian or conservator ("petition post-appointment"), set out in Rule 314 apply, because D.C. Code § 21-2049 (2021 Supp.) requires that, when appointing a successor guardian, the court must follow the same procedures to safeguard the rights of the ward that apply to the appointment of a guardian.