Filing for an Adult Guardianship in Maryland

Filing for an adult guardianship in Maryland is a difficult decision for many families. It is not uncommon for caring relatives to put off such a question until it is already painfully obvious that something has to be done.

A conversation with a Maryland guardianship lawyer can help with the decision-making process. If adult guardianship is the best choice, your attorney can often smooth the process of becoming the guardian of a loved one in need. But before getting to the question of how to become a legal guardian, it is important to understand what adult guardianship entails.

What is Adult Guardianship and When is it the Best Choice?

The question often comes up in connection with aging parents who have lost the ability to manage their personal or financial affairs because of stroke, dementia, other impairments, or in the unfortunate circumstance in which a loved one has suffered from elder abuse. In addition, it can arise with younger individuals who have suffered from a devastating accident, disabling addiction or, in the case of a disabled adult child, a long-term disability.

Adult guardianship is the formal process by which a court appoints someone to manage another’s personal care or property. The process affords significant protection to the allegedly disabled person:

• It requires a clinical finding that an individual is unable to make decisions about their affairs.
• Maryland law makes a distinction between a guardian of the person and a guardian of the property of an adult. The former looks after the individual’s personal and physical needs; the latter looks after the disabled person’s financial affairs. Sometimes only one form of guardianship is needed; sometimes both roles are combined in a guardian of the person and property.
• A guardian of property is fiduciary, with the responsibility to manage the assets of the allegedly disabled person exclusively for his or her benefit.
• The court reviews guardianships annually to determine whether they continue to be appropriate. A court may terminate or modify the terms of the terms of a guardianship.

Adult guardianship is generally seen as a last resort, best reserved for situations in which there is no other alternative that will adequately protect the interests of the person in need.

Power of Attorney or Health Care Directive

Conditions like age, illness or disability are not by themselves, an indication for legal guardianship. Maryland law focuses, instead, on the concept of “legal capacity.”

A guardianship proceeding requires two professional clinical certifications that an individual is unable to make financial or personal care decisions.

Older relatives may be perfectly capable of caring for themselves, but unable to manage financial decisions. Generally, a court may be willing to establish a guardianship of property where there is both an underlying medical condition and someone can be shown to be unable to balance a checkbook, pay household bills, or handle mail responsibly. On the other hand, a guardianship of property may not be necessary where a person has already executed a durable financial power of attorney granting someone else the ability to handle his or her financial affairs.

A court may be willing to establish a guardianship of the person when someone who is unable to make personal care decisions needs medical treatment that requires consent. As with financial decisions, the existence of a previously-executed advance directive or durable health care power of attorney may make a guardianship unnecessary.

Paradoxically, as we lead longer and healthier lives, the need for advance planning documents including powers of attorney and health care directives has become more important. Rockville, Maryland elder law attorney Henry Nash is happy to assist with advance health care directives, durable financial powers of attorney, adult guardianships and other legal concerns.

How to Become a Legal Guardian

In Maryland, the process of filing for adult guardianship has several steps:

1. You should work with an experienced guardianship attorney, your loved one’s medical team and other interested parties to determine whether a guardianship is necessary and, if so, what kind.
2. You will file a petition for guardianship with the circuit court in the county where the allegedly disabled person resides or is hospitalized.
3. If the individual who is the subject of the petition does not already have legal representation, the court will appoint an attorney to represent his or her interest in the proceeding.
4. You must notify all interested persons, including other family members, so that they can voice any opposition to the petition The notice must usually be issued within 20 days of filing.
5. If there is opposition to the petition, the court will then rank contestants, according to standards set out in the law, to determine who the guardian should be.
6. The guardian must attend mandatory training to learn about the role, duties, and responsibilities.
7. The guardian must file an inventory, detailing all of the disabled person’s assets.
8. The guardian must also submit a yearly report. The court will review the report and either accept it and continue the guardianship or take other appropriate action.

Speak With an Experienced Montgomery County, Maryland Adult Guardianship Lawyer

At The Law Office of Henry Nash, we work with clients in Rockville, throughout Montgomery County, and elsewhere in Maryland. We also assist out-of-state clients who have loved ones residing in the state. If you have any questions or concerns about any issues relating to any of our services, we welcome you to call us at (301) 998-6111 or contact us through our online form.