Power of attorney, health care directive and guardianship in the District of Columbia

Financial power of attorney in the District of Columbia

Law and official form

Law

Uniform Power of Attorney Act

Uniform Power of Attorney Act

Yes (effective February 23, 2023)

Official form

District of Columbia Statutory Power of Attorney Form (with Agent's Certification form in § 21-2603.02)Published by Council of the District of Columbia, D.C. Law Library

You do not have to use it.

Optional: a document 'substantially in the following form' may be used. The form ends with a notary acknowledgment block. If the agent may sell or encumber real property, the extra notice in § 21-2603.03 must appear at the top of the first page.

Law: D.C. Code § 21-2601.01; D.C. Law 24-236, § 2(d), 69 DCR 14660; D.C. Code §§ 21-2603.01 to 21-2603.03

Signing rules

How to sign

A power of attorney made under the District's act is not valid unless you acknowledge it before a notary public (or another official authorized to take acknowledgments). No witnesses are required by the act. If the power of attorney lets your agent sell or convey real property, it must be signed like a deed, carry the statutory real estate notice on the top of the first page, and be recorded with or before the deed.

Who signs

Signed by you, or by another person you direct to sign your name in your conscious presence.

Notary

Required

Witnesses

None required

Law: D.C. Code §§ 21-2601.05, 21-2603.03

Durable and springing

Is it durable?

A power of attorney created under the act is durable unless it expressly says it ends if you become incapacitated.

Law: D.C. Code § 21-2601.04

Durable unless it says otherwise?

Yes: it continues if you lose capacity unless it says otherwise.

Starting later (springing)

A power of attorney is effective when signed unless it says it starts on a future date or event. You can name a person to decide in writing that the event has happened. If it starts on incapacity and you named no one, a physician can determine in writing that you are incapacitated.

Law: D.C. Code § 21-2601.09

What an agent can and cannot do

Needs express permission

• Create, amend, revoke or end a living (inter vivos) trust
• Make a gift
• Create or change rights of survivorship
• Create or change a beneficiary designation
• Delegate the agent's authority
• Waive your right to be a beneficiary of a joint and survivor annuity, including a retirement plan survivor benefit
• Exercise fiduciary powers you are allowed to delegate
• Disclaim property, including a power of appointment

No power of attorney can

The statutory form states that it does not let the agent make health care decisions for you.

Law: D.C. Code § 21-2603.01

Agent duties, pay and court review

Agent duties

• Act according to your reasonable expectations they actually know, and otherwise in your best interest
• Act in good faith
• Act only within the authority you gave
• Unless the document says otherwise: act loyally for your benefit, avoid conflicts of interest, use ordinary care, competence and diligence, keep a record of all receipts, payments and transactions, cooperate with your health care decision-maker, and try to preserve your estate plan
• Show records within 30 days when asked by you, your guardian or conservator, a government agency protecting you, or after your death your personal representative

Agent pay

Unless the document says otherwise, an individual agent gets repayment of reasonable expenses but no compensation; a bank, trust company or similar institutional fiduciary gets expenses and reasonable compensation.

Law: D.C. Code § 21-2601.12

Asking a court to review an agent

You, the agent, your guardian or conservator, your health care decision-maker, your spouse, parent or descendant, a presumptive heir, a beneficiary, a government agency protecting you, a caregiver or other interested person, and a person asked to accept the power of attorney can ask the court to interpret it or review the agent's conduct. If you ask, the court must dismiss the petition unless it finds you lack capacity to revoke the agent's authority.

Law: D.C. Code § 21-2601.16

Law: D.C. Code § 21-2601.14

When it ends and how to revoke it

It ends when

• You die
• You become incapacitated, if the power of attorney is not durable
• You revoke it
• The document says it ends
• Its purpose is accomplished
• The agent dies, becomes incapacitated, resigns or is revoked, and no other agent is named
• An action is filed to divorce, annul or legally separate you from your agent-spouse

Divorce ends a spouse's authority

Yes · Divorce rules in the District of Columbia (Divorce Law Map)

How to revoke

You can revoke the power of attorney, or one agent's authority. The act does not prescribe a general method; a signed written revocation sent to the agent and to anyone who has the power of attorney is the clearest record. Signing a new power of attorney does not revoke an older one unless the new one says so.

Telling others

Tell the agent and give copies to banks and others who have the power of attorney. An agent or other person who acts in good faith without actual knowledge of the revocation is protected, and those acts bind you.

If it was recorded

If a power of attorney relating to real property was recorded with the Recorder of Deeds, you can revoke it by recording a document containing the revocation with the Recorder of Deeds. That revocation can leave the other powers in place if it says so.

Law: D.C. Code § 21-2601.10(g)

Law: D.C. Code § 21-2601.10(a)-(b); D.C. Code § 21-2601.10(a)(3), (b)(1), (d), (f), (g)

Banks, other states and real estate

Banks and other businesses

A person asked to accept a notarized (acknowledged) power of attorney must accept it, or ask for an agent's certification, a translation or a lawyer's opinion, within 7 business days, and then accept within 5 business days after getting it. They cannot demand a different form. They may refuse only for listed reasons, for example a good faith belief the power is invalid, a report of suspected abuse to Adult Protective Services or the Department of Aging and Community Living, or knowledge that the agent was charged with an intrafamily offense against you. A wrongful refusal can lead to a court order and payment of attorney's fees and costs.

Law: D.C. Code § 21-2601.20

Signed in another state

A power of attorney signed outside the District is valid here if its signing followed the law of the place it names (or where it was signed), or the federal military power of attorney rules. A photocopy or electronically submitted copy has the same effect as the original.

Law: D.C. Code §§ 21-2601.06, 21-2601.07

Real estate

A power of attorney that lets the agent sell, grant or release an interest in real property must be signed in the same manner as a deed, must carry the statutory real estate notice at the top of the first page (choosing all your real property or a specific property), and must be recorded with or before the deed. If recorded earlier, the deed must refer to its recording date and instrument number at the Recorder of Deeds.

Law: D.C. Code § 21-2603.03

Health care directive in the District of Columbia

The document and its form

Document

Durable power of attorney for health care

Official form

Durable power of attorney for health care (sample form in D.C. Code § 21-2207)Published by Council of the District of Columbia, D.C. Law LibraryVersion: Statutory sample form; any written form meeting § 21-2205 may be used

You do not have to use it.

Living will

Declaration (Natural Death Act)

The living will is a separate document.

A declaration directs that life-sustaining procedures be withheld or withdrawn if two physicians, one your attending physician, certify that you have a terminal condition. Any person 18 or older can make one. It must be in writing, dated, and signed by you (or by another person in your presence at your express direction) in front of two witnesses 18 or older. A witness cannot be the person who signed for you, a relative by blood, marriage or domestic partnership, a person who would inherit from you, a person directly financially responsible for your medical care, your attending physician or the physician's employee, or an employee of the health facility where you are a patient. You must make sure your attending physician is told about it.

Living will

Law: D.C. Code § 21-2207; D.C. Code § 7-622

Signing rules

How to sign

Sign and date the durable power of attorney for health care with two adult witnesses who also sign. A notary is not part of the statutory rule. The Natural Death Act declaration has its own, stricter witness rules.

Who signs

Dated and signed by you (a competent adult). It must clearly say your attorney in fact may make health care decisions and include words such as 'This power of attorney shall not be affected by the subsequent incapacity of the principal' or 'This power of attorney becomes effective upon the incapacity of the principal.'

Notary

Not required

Witnesses

2

Who cannot witness

Two adult witnesses must sign and affirm you were of sound mind and free from duress. Neither witness can be you, your health care provider or an employee of your health care provider. At least one witness must not be related to you by blood, marriage or adoption and must not be entitled to any part of your estate under a current will or by law.

Law: D.C. Code § 21-2205(b)-(d)

Who can be your agent and what the agent can do

When the agent starts

The attorney in fact can decide only when you are certified incapable of making or communicating a health care decision. Incapacity must be certified in writing by two District-licensed professionals, one a physician and one a qualified psychologist or psychiatrist; at least one must have examined you within one day before certifying. The attorney in fact cannot make a decision that you are able to make yourself.

Law: D.C. Code §§ 21-2204, 21-2205(a), 21-2206(b)(2)

Decisions an agent cannot make

Subject to any limits you write, the attorney in fact has all your health care decision rights, including consenting to or refusing treatment, seeing your records, choosing providers and deciding admission or discharge from facilities. They must follow your wishes stated in the document, or, if unknown, act in good faith in your best interests.

Law: D.C. Code § 21-2206

Revoking and conflicting documents

Revoking your agent

While you have capacity, you can revoke your attorney in fact's appointment by telling the attorney in fact orally or in writing, or revoke their authority by telling your health care provider orally or in writing. You are presumed to have capacity to revoke.

Law: D.C. Code § 21-2208(a), (c)

Revoking your instructions

A Natural Death Act declaration can be revoked at any time, whatever your mental state, by destroying it (or having someone destroy it in your presence at your direction), by a signed and dated written revocation, or by saying you revoke it in front of a witness 18 or older who signs and dates a writing confirming it. A written or verbal revocation takes effect when it is communicated to your attending physician.

Law: D.C. Code § 7-624

Telling others

A health care provider told of a revocation must note it in your records and make a reasonable effort to tell the attorney in fact. For a declaration, the attending physician records when the revocation was received.

Law: D.C. Code § 21-2208(b); § 7-624

Divorce ends a spouse's authority

Yes · Divorce rules in the District of Columbia (Divorce Law Map)

Conflicting documents

Unless it says otherwise, a valid durable power of attorney for health care revokes any earlier durable power of attorney for health-care decisions.

Law: D.C. Code § 21-2208(d)

Law: D.C. Code §§ 21-2208, 7-624

If you have no directive

Who decides without a directive

This list applies only when you have no durable power of attorney for health care and your incapacity has been certified. If no one in a higher group is reasonably available, mentally capable and willing, the next person decides. The order is a presumption: a lower-priority person who better knows your wishes can challenge a decision in Superior Court. At least one witness must be present when a family member or friend consents or refuses for you. The decision must follow your known wishes, or else your best interests. No one on this list can consent to abortion, sterilization, psycho-surgery, convulsive therapy or aversive behavior programs without a court order.

1. A court-appointed guardian or conservator, within the scope of the appointment
2. A court-appointed intellectual disability advocate, within the scope of the appointment
3. Your spouse or domestic partner
4. An adult child
5. A parent
6. An adult brother or sister
7. Your religious superior, if you are a member of a religious order or a diocesan priest
8. A close friend (not your treating provider or its owner, administrator or employee)
9. Your nearest living relative

Law: D.C. Code §§ 21-2210, 21-2211

Other states, registry and medical orders

POLST (medical orders)

Medical Orders for Scope of Treatment (MOST); electronic MOST (eMOST)

Official page

Law: D.C. Code §§ 21-2221.01 to 21-2221.15

Guardianship and conservatorship in the District of Columbia

What guardianship or conservatorship is

What it is called

Guardian (general, limited, temporary, emergency, health-care) and conservator; the case is an 'intervention proceeding' (INT)

When a court may appoint one

The petitioner must prove incapacity by clear and convincing evidence. An incapacitated individual is an adult whose ability to receive and evaluate information or communicate decisions is impaired so much that they cannot manage all or some of their financial resources or meet all or some essential requirements for health or safety. The court must choose the guardianship that is least restrictive in duration and scope and encourage maximum self-reliance and independence.

Law: D.C. Code §§ 21-2003, 21-2011(11); § 21-2044(a)

Kinds

• General guardian
• Limited guardian
• Temporary guardian
• Emergency guardian (up to 21 days)
• Health-care guardian (up to 90 days)
• Conservator
• Protective order / single transaction

Law: D.C. Code §§ 21-2041 to 21-2077

Who can ask, which court and your own choice

Who may ask

The incapacitated individual or any person interested in their welfare.

Law: D.C. Code § 21-2041(a)

Court

Probate Division, D.C. Superior Court, 515 Fifth Street NW

Choosing your own

In a power of attorney you can nominate a conservator of your estate or guardian of your person; except for good cause or disqualification, the court must follow your most recent nomination.

Law: D.C. Code §§ 21-2601.08(a), 21-2043(b)

Effect on a power of attorney

If a conservator or other fiduciary for your property is appointed, the power of attorney does not end; the agent becomes accountable to that fiduciary as well as to you, and the agent's authority continues unless the court limits, suspends or ends it.

Law: D.C. Code § 21-2601.08(b)

Cost, fee waiver and forms

Filing fee

$45.00 payable to the Register of Wills if a conservator or protective order is requested.

Source: D.C. Courts, Intervention Proceedings page

Fee waiver

Fee Waiver Application, D.C. Courts

Source: Application to Waive Prepayment of Costs

Forms

• Petition for a General Proceeding (INT)
• Order Appointing Counsel, Examiner, Visitor and/or Guardian ad Litem (INT)
• Notice of Initial Hearing to Subject (INT)
• Notice of Initial Hearing to Other Persons (INT)
• Personal Identification Information (Form 26)
• Financial Account Information (Form 27)
• Fee Waiver Application

Steps

Steps

Other options and where to report abuse

Supported decision-making

Supported Decision-Making Agreements

Effective May 5, 2018

An adult with a disability can sign an agreement with a supporter who helps them get information, understand options and communicate their own decisions. The agreement states that it does not give the supporter permission to make decisions for the person. A paid health care or disability service provider (unless a relative), a government worker financially responsible for the person's care, and people with certain abuse or crime histories cannot be supporters.

Signed by the adult with a disability and the supporter in the presence of two adult witnesses or a notary public, in substantially the form in § 7-2132(d).

Source: Official text

Less restrictive options

• Limited guardian: A guardian whose powers the court limits and lists on the letters of guardianship.
• Protective order or single transaction: Instead of a conservator, the court can authorize a protective arrangement or a single transaction.
• Supported decision-making agreement: A signed agreement naming a supporter who helps an adult with a disability make their own decisions.
• Durable power of attorney and durable power of attorney for health care: Documents you sign while you have capacity naming people to act for you.

Report abuse or exploitation

Adult Protective Services, D.C. Department of Aging and Community Living (24-hour hotline) · 202-541-3950

Call or text the Eldercare Locator to find your local adult protective services: 1-800-677-1116 · eldercare.acl.gov

Law: D.C. Code §§ 7-2131, 7-2132; D.C. Law 22-93

Good to know in the District of Columbia

• A District power of attorney is not valid unless it is notarized (acknowledged).

  Law: D.C. Code § 21-2601.05(b)

• Unless the power of attorney says otherwise, an individual agent in the District is not paid, only reimbursed for expenses.

  Law: D.C. Code § 21-2601.12

• The default decision-maker list includes a religious superior and a close friend, and a witness must be present when a family member or friend gives or refuses consent.

  Law: D.C. Code § 21-2210

• Incapacity for health care decisions must be certified by two professionals, one a physician and one a psychologist or psychiatrist.

  Law: D.C. Code § 21-2204

Questions about powers of attorney in the District of Columbia