With the U.S. population aging at a rapid rate, discussions of guardianship are becoming common.
There are two (2) types of guardianships. The first is Guardianship of the Person. The second is Guardianship of Property. The Guardian of the Person will make decisions regarding the disabled personís medical care. The Guardian of the Property will make decisions regarding the disabled personís finances. Frequently, the Guardian of the Person and the Guardian of the Property are the same person. Each requires the Petitioner (the person who wants to become guardian) to prove that the alleged disabled person lacks the mental capacity to make decisions for themselves.
Guardianship is a legal arrangement. As such, a court order is needed. Maryland law requires that an attorney be immediately appointed, upon the filing of a petition for guardianship, to represent the disabled person to ensure due process.
Family Members as Legal Guardians
Many guardians are family members. When a disabled person cannot care for themselves, immediate family members often want to step in and help. Unfortunately, however, many well-intentioned individuals find they cannot effectively help their loved one due to legal roadblocks. Thus, legal guardianship serves to protect the disabled by allowing a designated representative to make the necessary decisions in their place.
The process in Maryland can take several months from when the necessary court documents are filed. The court then appoints an attorney to represent the interests of the disabled loved one. Once the court has established the need for a guardian, it will consider all the aspects of guardianship to be handled.
The courts consider each case individually. This legal document may authorize the guardian to make financial decisions, medical decisions, or both, in addition to arranging for basic food and housing needs, or any other requirements as determined by the court. The court may stipulate a small stipend for services and within a year of being appointed guardian, an inventory of property will be required.
A guardian may retain assets, borrow, buy and sell property, negotiate with creditors, enter into contracts in the name of the disabled person, and pay claims against the property. Due to the increased level of risk involved, if an estate has a value over $10,000, the court may also require the guardian be bonded.
Non-Family Members as Legal Guardians
In a growing number of cases, a person in need of a legal guardian may not have family members who can or are willing to provide guardianship. The state of Maryland has specific guidelines to deal with such situations known as public guardianship. A public guardian serves only the medical needs of the disabled person; no arrangements are made for guardianship of the estate.
If a person is under age 65, the courts will appoint the director of the Maryland Department of Social Services as guardian. If the disabled person is over age 65, the job will be assigned to the Secretary of Aging or a local equivalent organization if possible.
Public guardianship arrangements are reviewed bi-annually via the county Adult Public Guardianship Board. The board identifies issues related to the care of the individual and provides recommendations to the court for handling problems. The board also recommends at that time whether it believes the guardianship should continue, end, or be modified.
Finally, if the disabled person requires help managing their financial affairs, the Court can and will appoint a member of the bar to help them manage their financial affairs if no other alternatives are available.
It is important to note that Powers of Attorneys and Health Care Directives can help avoid the Guardianship process.
ABOUT THE AUTHOR: Jayme L. Levy
Jayme Levy is the principal attorney at the Law Offices of Jayme L. Levy, LLC. A native of Baltimore, Ms. Levy attended Ohio University for her undergraduate studies where she attained her B.A.s in political science and history. Ms. Levy primarily focuses her practice on the areas of elder care, estate planning, and special needs planning. In addition, Ms. Levy helps veterans and their spouses apply for Veterans Benefits.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.