Jay Leno recently started his legal journey to obtain conservatorship or guardianship over his wife who was recently diagnosed with dementia. The court paperwork shows that he was filing so he could set up a living trust for his wife to manage her assets and provide for her continued care if he died. He is asking the court for permission to create an estate plan because they had not done so before the onset of her dementia which has presumably left her without the testamentary capacity to participate and execute an estate plan.
So how does a celebrity or anyone find themselves needing to petition the court for permission to act on behalf of their spouse? It’s because they failed to plan for incapacity and death while they and their spouse were alive and well. A comprehensive estate plan is going to provide for planning during life and at death. It is critically important to plan for incapacity so you aren’t facing the additional burden and expense of a court-supervised guardianship for years to come.
What is the guardianship process in Maryland and why do you want to avoid it?
There are two types of guardianship proceedings in Maryland- guardian of the person, a guardian of the property, or both. When someone is petitioning the court for guardianship, the petitioner must provide a brief description of the alleged disabled person’s disability and the reason why guardianship is sought, a description of the care needed by the alleged disabled person, and two certificates of incapacity by a professional to indicate that the alleged disabled individual cannot manage their affairs. Once a petitioner files to be appointed as guardian, the court will appoint an independent attorney to represent the alleged disabled individual’s interest. This attorney has the authority to speak to the alleged disabled individual, interview interested persons- including the petitioner- and review medical records and speak to medical providers. They will file a response or answer to the petition for the court to consider.
The petitioner is also responsible for serving all interested persons who have a statutorily defined relationship with the alleged disabled individual. Once service is completed and the court-appointed attorney files their response, the court will conduct a hearing where they will determine if guardianship is necessary and if so, who is the appropriate guardian. The timeframe for this process varies from county to county in Maryland but it will take generally 4-6 months for an uncontested guardianship to be completed.
It’s also important to note that the court will continue to be involved even after the petitioner is appointed as guardian. The court requires annual accounts of all finances if you are appointed as guardian of property. As the petitioner, you will need to petition the court for permission to make certain expenditures that need additional approval. There are also requirements if you are appointed as guardian of a person so it is important to consult with your attorney and be clear on what further communication is needed with the court.
If you are ready to put a plan in place to avoid guardianship or you find yourself in a situation like Jay Leno, don’t hesitate to contact Sinclair Prosser Gasior to schedule your consultation today.
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