By: Leslie Case DiPietro, Esq.
When an adult lacks the ability to make legal, financial and/or healthcare decisions for themselves, a family member or friend may seek to be appointed as guardian of their property, their person or both. Guardianship in Maryland requires court approval and oversight. Therefore, knowing what to expect and who to turn to can be critical to those exploring guardianship as a solution.
Less Restrictive Means
Guardianship significantly limits an individual’s rights. Therefore, courts take petitions to appoint a guardian seriously, and require that strict requirements be satisfied. If a person has capacity, they can select their own decision makers, rather than relying on the court. In Maryland, two important documents are required to fully plan for incapacity. First, a properly executed, thorough Durable Power of Attorney, which authorizes a trusted Agent(s) to make various decisions on behalf of the signor if he or she becomes unavailable or incapacitated. Second, an Advance Directive for Healthcare allows the signor to appoint a medical decisionmaker in addition to detailing important decisions regarding end of life and organ donation. Maryland recently adopted legislation as an alternative to guardianship, which would allow a person to retain their decision-making authority while recognizing that they may rely on supporters to help them make, communicate and effectuate their decisions.
If Guardianship is Necessary
The guardianship process is initiated with a petition by the person(s) seeking to be appointed guardian of the disabled person. The petition must include physician certificates which describe the disabled person’s legal incapacity. The disabled person is also appointed an attorney who will determine whether the alleged disabled person consents or objects to the guardianship. The disabled person’s closest family members (“next of kin”) are provided notice of the proceedings. If the disabled person or any interested party objects to the guardianship, the court will schedule a trial to determine whether the disabled person lacks capacity and to determine whether the petition is the best person to serve. Once appointed, the court continues to oversee the guardians care for the disabled person’s person and property.
While uncontested guardianships are more easily obtained, it is important that the correct documents are filed and provide the needed facts to support guardianship. Additionally, the timing of the physician examinations should be carefully scheduled to conform to Maryland law. An experienced attorney can assist with preparing the petition and supporting documents and to ensure that you have accurate guidance on the responsibilities of guardianship.
If your loved one suffers from a disability, but has the legal capacity to execute a Power of Attorney and Advance Directive for Healthcare, consider consulting with an estate planning attorney to determine whether these documents, or other supported decision making, may be a less restrictive alternative to guardianship. If your loved one does not have capacity, guardianship should be explored with an attorney familiar with the legal process to help you through it.