When someone becomes disabled and no longer has the ability to manage their legal, financial, or medical decisions for themselves, it may be necessary for a guardianship proceeding to be initiated on their behalf. There are many reasons that could lead to someone becoming disabled, for instance dementia, a stroke, suffering the effects of addiction, or any illness or ailment which prevents the person from acting on their own behalf. There are two main types of guardianships that can be initiated, that is guardianship of the person and guardianship of the property. Obtaining either type of guardianship in Maryland requires court approval.
What is a Guardianship?
A guardianship is the legal procedure where a court seeks “to protect those, who because of illness or other disability, are unable to care for themselves.” Kicherer v. Kicherer, 285 Md. 114, 118, 400 A.2d. 1097 (1979). Under Maryland Estates and Trusts Article, Section 13-101(e), a “disabled person” refers to an adult who has been found by a Judge “to be unable to manage his property,” and therefore needs a guardian of the property, or “to be unable to provide for his daily needs sufficiently to protect his health or safety,” and therefore needs a guardian of the person.
Through the guardianship proceeding, the court assumes jurisdiction over the disabled person, and the court-appointed guardian carries out the court’s responsibilities as the court’s agent.
The guardian is to act in the best interest of the disabled adult.
One of the other requirements for a guardianship to be entered is that it must be established that there is “no less restrictive form of intervention [] available that is consistent with the person’s welfare and safety.” Md. Est. & Trusts Art., § 13-705(b).
Types of Guardianships?
Guardian of the Person: the person appointed as guardian of the person is responsible for caring after the disabled adult’s person and physical everyday needs such as: shelter, food, clothing, healthcare. It may also include ensuring that certain services are put in place, such as an in-home nurse or health aid. The rights, duties, and powers of the guardian of the person are further enumerated in Maryland Estates and Trusts Article, Section 13-708.
Guardian of the Property: the person appointed as guardian of the property is responsible for managing the financial affairs of the disabled adult, and in making any financial decisions on behalf of the disabled adult. This could include, managing assets or investments, collecting income, filing for, or receiving benefits for services, and ensuring bills are paid. The rights, duties, and powers of the guardian of the person are further enumerated in Maryland Estates and Trusts Article, Section 13-218.
When is a Guardianship Necessary?
Guardian of the Person: this type of guardianship will be necessary where a person is “legally disabled” or lacks capacity to understand or communicate decisions concerning themselves and their wellbeing. The disability may be due to: mental disability, disease, habitual drunkenness, drug addiction. The need for guardianship in this instance arises when 1) the alleged disabled person does not have a health care power of attorney and medical decisions must be made; and 2) multiple family members wish to care for the alleged disabled individual and are not able to come to consensus.
Guardian of the Property: this type of guardianship will be necessary when a person is entitled to property or benefits that must be managed and the alleged disabled individual is unable to manage the property because of the disability. For instance, the individual can no longer pay bills, or balance a checkbook, or articulate financial decisions.
What does the Court Process Look Like?
To initiate a guardianship proceeding on behalf of a disabled adult, a Petition needs to be filed in the appropriate county in Maryland. The Petition must be accompanied by certain supporting documents, including signed and verified certificates of competency from health care professionals licensed to practice medicine in the United States, who have examined or evaluated the disabled adult. The medical certificates must be from either two (2) licensed physicians, or one (1) licensed physician and one (1) licensed psychologist, licensed social worker-clinical, or nurse practitioner. At least one (1) of the medical certificates must have been completed within twenty-one (21) days before filing. The Petition also requires establishing the less restrictive form of intervention that was attempted but was not successful in ensuring the person’s welfare and safety. There are also strict notice requirements that must be adhered to, to protect the individual’s due process rights.
The disabled person who is the subject of the petition will get a court appointed attorney.
If there is objection, a trial will be held, and the Judge will make a determination as to whether there are sufficient grounds to appoint the guardian who has petitioned.
Once a guardian is appointed, the court oversees the guardianship and the guardian’s care of the disabled adult and/or their property, or both.
Ensuring that the Petition is completed correctly, that the proper medical certificates are obtained, and that notice is proper, can be daunting. It is critical to seek the assistance of an attorney prior to filing with the court. If you wish to file a Petition for Guardianship in Maryland, contact the experienced family attorneys at Krum, Gergely & Oates, today for a consultation.