Lerch, Early & Brewer's Legal Update
Many people struggle with how to help an aging or otherwise disabled family member, friend or neighbor who can no longer handle his or her own affairs. They want to be of assistance, but they may not have the necessary legal authority to do so. For example, the person who needs assistance may have failed or refused to sign various legal documents to plan in advance for disability, such as an Advance Directive for health care or a financial or health care Power of Attorney. Alternatively, the person in need of assistance may have signed the appropriate paperwork, but the person(s) designated to serve as decision-maker and/or attorney-in-fact may be unavailable or unwilling to serve in that capacity. Guardianship may be the only available option under these and other similar scenarios.
Under Maryland law, guardianship is undertaken only as a matter of last resort, as it involves an involuntary process and the filing of a legal action in court. Advance Directives and Powers of Attorney are generally preferred, as they facilitate the decision-making process and minimize conflict by allowing one's wishes to be known in the event of incapacity. Even so, guardianship is often a necessary step for one to secure the appropriate legal authority to handle the affairs of another.
What Are the Types of Guardianships?
There are two types of guardianships: guardianship of the person and guardianship of the property. Typically, a guardian of the person will have the duty and authority to make decisions concerning the care, comfort or maintenance of the person under guardianship, who is then referred to as the “ward.”
A guardian of the property usually is vested with title to all of the property belonging to the ward. A guardian of the property has the duty and authority to manage the ward's assets for the ward’s benefit. Sometimes, the ward may not have significant assets, but may still need a guardian of the property to apply for public assistance benefits, such as Medicaid, and to obtain the necessary financial documentation to accompany the application.
Who May Serve as Guardian?
There are several categories of persons who are eligible to serve as guardian. These include any persons nominated by the "alleged disabled person," close family members, potential heirs, and certain other persons considered appropriate by the court. For guardianships of the person only, the director of the local Department of Social Services or Office on Aging may in some instances serve as guardian if there is no one else who is available and appropriate to serve. For guardianship of the property, an independent third person, such as a lawyer or accountant, may be a good choice to help minimize family conflict or to alleviate the burden on family members.
Who Establishes a Guardianship?
In Maryland, guardianships can be established only by court order. Any interested person can file a guardianship action, including not only family members and friends, but also concerned neighbors, homeowners’ associations, religious organizations, health care providers and the like. The petitioner may ask the court to appoint him or her as guardian or to have someone else appointed as guardian.
Certificates from two licensed physicians or from one licensed physician and one licensed psychologist or certified clinical social worker must accompany a guardianship petition filed with the court. Each certificate must include, among other things, details concerning the cause, nature, extent and probable duration of the disability. In addition, notice to all interested parties and a court hearing are required.
What If the Guardianship is Contested?
After the case is filed, the court will appoint an attorney to represent and serve as “zealous advocate” for the alleged disabled person. If the alleged disabled person expresses opposition to the guardianship, the attorney must vigorously advocate that position and the case may have to go to trial. There also may be disputes among interested persons concerning either the need for guardianship or the question of who should serve as guardian. Not all cases are adversarial, however, and many are resolved by means of a brief court hearing.
Who Supervises the Guardian?
Once appointed, a guardian remains under the supervision of the court. A guardian of the person must obtain court approval for medical procedures involving a substantial risk to the life of the ward, obtain court authorization for any changes in the classification of the ward's abode, such as a move from a private residence to a nursing home, and submit an annual report to the court concerning the ward’s current health status. A guardian of the property is required to maintain careful financial records, file an initial inventory, and file annual accountings with the court.
While guardianships may be a far less desirable alternative to Advance Directives and Powers of Attorney, sometimes a guardianship is the only means available to provide adequate support to a person who lacks capacity to make responsible decisions concerning his or her person and property.
Susan Berry Bloomfield practices in the firm’s Litigation, Elder Law and Health Care groups. She regularly represents families and health care providers on guardianship matters. Susan may be reached at sbbloomfield@lerchearly.com or at 301-907-2802.
This article originally appeared in Lerch, Early & Brewer's Legal Update Winter 2010 issue. It is for your information only and is not intended to constitute legal advice. Please contact your attorney for more information.
Copyright 2010 by Lerch, Early & Brewer, Chtd.
