G&C

Law Offices of David C. Slade

Guardianship

Guardianship is the only resort for assisting a person who has lost their mental capacity to care for themselves. Guardians can only be appointed by a court, and thus entail all of the cost, time and emotional expense as any court action. Further, the court will continue to oversee the guardianship, requiring the guardian to file an annual report to the court informing the court of what actions have taken place under the guardianship. The court may require the guardian to be bonded.

Clearly, it is much more preferable to act while someone is mentally competent, so that he or she can appoint an "attorney-in-fact" through a Power of Attorney to manage their financial and property affairs, and appoint a "health care agent" with a Health Care Agency. In this way the person selects his or her own guardians well before the need actually arises.

Alzheimers can strike anybody. But no matter how well we plan, life simply is not predictable. It is not uncommon for a family to be faced with the problem of caring for a loved one who can no longer make their own decisions -- too late for a Power of Attorney or Health Care Agency. Their problem could be a sudden car accident, a serious disease, a long-term mental disorder, such as a coma or Alzheimer's, or simply losing touch with the real world. Perhaps they pose a threat of harming themselves or someone else if left on their own. Suddenly the family has no choice but to petition a court for guardianship.

In Maryland, there are two types of guardianships: Guardian of the Person, and Guardian of the Property (sometimes called a "conservatorship" in other States). A Guardian of the Person is responsible for the health and maintenance of the disabled individual, similar to a person appointed as a Health Care Agent, but usually with somewhat broader powers. The Guardian of the Property is responsible for the financial and property affairs of the person, much like an attorney-in-fact appointed by a Power of Attorney.

For either guardianship, a petition must be filed with a court. The petition usually must include a certification from two physicians who have examined the disabled person and certify that the disability is such that the person can no longer care for herself. The disabled person will receive a notice from the court informing them that a guardianship petition has been filed with the court, and that the person will lose valuable rights if a guardian is appointed, such as the right to make decisions as to where they live, how they live, and what medical care they receive.

A hearing is required for a petition for either guardianship. Normally both guardianships may take several weeks for the court to complete it. An emergency hearing before a court is possible in situations where there is a risk of immediate injury or death to the disabled person.

Return to Home Page.