Guardianship Law 101

What do you do if your loved one appears unable to make decisions for himself/herself?  Is a guardianship necessary? Unfortunately, this is not an uncommon question posed to Bulman Dunie attorneys.

What Is a Guardianship and When Is It Available?

Guardianship is only available where there are no less restrictive means available to protect the disabled individual.

A power of attorney is considered a less restrictive means than a guardianship to protect an adult.  Hence, it is critical for elderly individuals to have both a health care and a financial power of attorney.

If a guardianship is necessary, there are two types of guardianships.  Either or both may be necessary.

A Guardian of the Person can be appointed to make health care decisions for a disabled individual.  Health care decisions can include consent to medical treatment and appropriate placement for care.

A Guardian of the Property can be appointed to manage and protect the property of a disabled individual.  Property includes bank accounts, real estate, and other assets.

Note why it is essential for elderly individuals to have both a health care and a financial power of attorney.  An incapacitated individual who only has a health care power of attorney in place may require the appointment of a guardian of the property.

How and Where Do I File?

The petition for guardianship is complicated and does require some advance planning.  The petition must be accompanied by 2 medical certifications.  At least 1 of the certifications must be completed by a licensed physician.  At least 1 of the certifications must be completed in the 21-day period prior to the filing of the petition.

If you fear an individual is disabled but will not submit to an evaluation, the court can order an individual to submit to an evaluation.  This is a very high standard.

The petition for guardianship of the person is filed in the county court where the individual resides or has been admitted for medical care.  The petition for guardianship of the property is filed in the county court where the property is located.  It is possible (in fact it is common) to file the petition for guardianship of the person and property in the same petition.

What Happens After I File?

Once a petition for guardianship is filed, the court will appoint an attorney for the alleged disabled person and will schedule a hearing. The petition and notice of the hearing must be served on all “interested parties” who will have the opportunity to be heard on the matter.

Commonly, the controversy is not whether a guardianship is necessary but rather who is appropriate to serve as guardian.  Maryland law establishes a chain of priority for who can serve as guardian based upon the relationship of the guardian to the disabled.

Who Should I Call If I Need Help?

If you would like more information about guardianship law, contact attorneys Jane Rodgers or Jeremy Rachlin.  Both Jane and Jeremy have completed specialized guardianship training from the Maryland Courts and both are on the Maryland state list of court-appointed attorneys for guardianship cases.

If you would like more information about planning to avoid a guardianship, contact attorneys Jared Sands or Jeremy Rachlin.  Powers of attorney are an inexpensive way to give you and your family peace of mind that a guardianship will be avoided.