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    Home / Incapacity Planning / Maryland Durable Power of Attorney / Downsides to Guardianship

    Downsides to Guardianship

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    “Downsides to Guardianship” by Attorney Alexander Pagnotta

    Guardianship could become necessary under circumstances where a person becomes incapacitated and has made no advance plans regarding who will manage their affairs. Guardianship or conservatorships are formal legal processes that establish an officially-recognized relationship between an incapacitated person (a ward) and his guardian or conservator. Family members or close friends of someone who is incapacitated may need to pursue guardianship or conservatorship proceedings in court to get control over the incapacitated person.

    Sinclair Prosser Gasior can provide assistance with legal issues related to incapacity and guardianship. Our legal team understands the ins-and-outs of the guardianship laws in Maryland and we can provide aid in becoming a conservator.

    Our firm also provides help with the creation of an incapacity plan in order to eliminate the need for guardianship.  Avoiding guardianship whenever possible is advised because there are some significant downsides to this legal process and to the legal relationship that is formed.

    Four Downsides to Guardianship

    Guardianship or conservatorship could be the only way to gain control in a situation where someone you love has become incapacitated. If you want to begin making decisions on behalf of that person and you want to start managing their assets, you have to get court authority to do so…. unless advanced plans made by the incapacitated person have given you (or someone else) authority.

    While guardianship may be the only choice, it is important to be aware of four key downsides including the following:

    1. A complex court process is necessary: The Maryland Department of Human Resources explains adult guardianship. The process of becoming a guardian for an adult can be stressful and confusing. Families don’t need the stress of guardianship or conservatorship proceedings at a time when they are coping with a loved one’s disability.
    2. A delay could occur: Guardianship proceedings can take time, as forms have to be filed, a court date has to be scheduled, and the court has to appoint a guardian. As all of this delay occurs, assets could be losing value if there is no knowledgeable appropriate person in charge of managing the property and wealth of the incapacitated person.
    3. The guardian could be someone who the incapacitated person might not want: If the court appoints someone to be a guardian, this means that the incapacitated person has no say over who is making decisions. Acting in advance of incapacity provides a chance to determine who exactly will act on your behalf if you become unable to act on your own.
    4. There could be fighting over who should be the guardian: Family members may disagree over who should be appointed guardian or conservator, which could result in legal battles and cause family stress.

    There may be other reasons why guardianship is not the ideal solution for your situation. To find out about some alternatives in case of incapacity, you should talk with an experienced attorney.

    Alternatives to Guardianship

    Guardianship is only necessary to get authority over an incapacitated person if the incapacitated person has not made advanced plans for what will happen if he becomes unable to care for himself. If an incapacity plan is made, then there should be no need for conservatorship because a person chosen by the incapacitated individual will already have legal authority by virtue of the incapacity plan. The authority should immediately vest in the chosen person, eliminating any possibility of delay.

    There are different legal tools that should be part of an incapacity plan that helps to avoid guardianship. A power of attorney is a very important and commonly used tool which allows for an agent to be named who will automatically and immediately get control over decision-making for the incapacitated person. There are specific rules for the creation of a durable power of attorney that can give an agent control when illness or injury results in incapacity.

    Sinclair Prosser Gasior will explain the alternatives to guardianship and the tools that should be used to create an incapacity plan so conservatorship or guardianship is not needed when illness or injury strike.

    Getting Help from an Annapolis Incapacity Planning Lawyer

    You should make your plans for incapacity today because there is no guarantee something won’t happen to you tomorrow that necessitates conservatorship. Sinclair Prosser Gasior can help. Join us for a free seminar to find out more about how an Annapolis incapacity planning lawyer can assist you.

    If you find yourself in a situation where you need to initiate guardianship proceedings to become a guardian or conservator for a loved one, you can also give us a call at 410-573-4818 or contact us online to get personalized help with the process.

    Alexander M. Pagnotta, Estate Planning Attorney
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