When a person is unable to care for their personal or financial needs because of age, disease, or disability, the court may appoint a guardian. A guardianship is a legal proceeding in which a petitioner (usually a family member or friend) asks the court to find that the person (the “alleged disabled individual”) is unable to manage his or her own affairs effectively. The court then appoints a guardian to act for that person and make decisions affecting his or her health, property, or both.
There are two types of guardianship proceedings in Maryland- a guardian of the person and a guardian of the property. One person can serve as both guardian of the person and guardian of the property, or different people can take each role. In an emergency case or in cases where an individual has no family member or friend to serve as guardian, a court may appoint a public guardian and will usually appoint someone from a local area agency or the Department of Aging or Maryland Department of Social Services to serve.
When someone is petitioning the court for guardianship, the petitioner must provide a brief description of the alleged disabled person’s disability and reason why guardianship is sought, description of the care needed and two certificates of incapacity by a medical or mental health practitioner to indicate that the individual does not have the capacity to manage their own affairs. Once a petition is filed, 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 that have a statutorily defined relationship to 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 a guardianship is necessary and if so, who the appropriate guardian is. The timeframe for this process varies from county to county in Maryland, but it will generally take four to six months for an uncontested guardianship to be completed.
Guardianship proceedings may be contested and if that’s the case, the parties will likely engage in discovery (i.e., request for production of documents and written questions asked under oath), depositions and the ultimate decision is likely to be determined by a jury. The court proceeding can last well over twelve months and be very costly. Also, it is important to note that once appointed as guardian, there are ongoing court requirements such as annual reporting of finances to inform the court of the status of the guardianship estate.
So, you may ask if there is a better alternative to a guardianship proceeding. If the person has the legal capacity and understanding to execute power of attorney documents then a guardianship may be avoided. A Power of Attorney can easily be characterized as a written authorization that you sign to allow someone else to act on your behalf in your private affairs. The two main categories of these types of documents are Financial Power of Attorney and Healthcare Power of Attorney. In fact, if someone is able to execute a Power of Attorney then a guardianship is not appropriate as the court is always looking for the least restrictive method in order to have someone assist the disabled individual. This is why having a Power of Attorney- and keeping it up-to-date throughout the years- is critical to avoid having your family or loved ones filing for a guardianship petition.
If you or a loved one is in need of a guardian or if you would like to avoid the guardianship process by creating or updating your Power of Attorney documents, contact us at Sinclair Prosser Gasior for a consultation.