Guardianship of Incapacitated or Disabled Persons: What Options Are Available?
What are the options when a family member cannot handle their affairs independently?
In Maryland, a person lacks legal capacity when he or she lacks sufficient understanding or ability to make or communicate responsible decisions concerning himself or herself, such as health care, food, clothing, or shelter. There can be many causes of incapacity, such as mental disability, addiction, illness, medical condition, or injury.
The odds are that, in our lifetime, many of us will find ourselves in a situation where either:
1. we are unable to manage our affairs and/or…
2. we find ourselves in a situation where we are caring for an adult family member who lacks legal capacity.
In an ideal world, everyone would prepare an estate plan that anticipates the potential for incapacity and provides for the appointment of an agent and access to the necessary resources to support an incapacitated individual. But, once incapacity strikes, it is generally too late to execute an estate plan because the individual is no longer competent to do so. So, then, what?
Various options are available, including guardianship. Guardianship results from initiating a legal process whereby a person petitions the Court to be appointed guardian for an individual who can no longer make or communicate decisions about their body or property.
Types of Guardianship in Maryland
Maryland has two types of guardianship: guardian of the person and guardian of the property.
A guardian is appointed to make health care, personal decisions, and sometimes financial decisions on behalf of another adult.
A person petitioning for guardianship over another carries a high burden and must, among other things, provide sufficient evidence from healthcare professionals of the alleged incapacitated adult’s lack of capacity. In Maryland, the alleged incapacitated adult has the right to counsel and a hearing for a good reason. In the end, if a guardian is appointed, the incapacitated adult is stripped of his or her right to make significant decisions regarding their life.
While guardianship may be an option, it is often less than ideal. It takes time, legal process, and expense, and the result is often complicated and emotional. The best plan is often to execute an estate plan before incapacity strikes. However, guardianship may be the next best choice if that is no longer an option.
Maguire Law can assist on either end of this spectrum, preparing an estate plan that anticipates incapacity and representing either side in a guardianship proceeding.
Ms. Maguire is an estate planning attorney in Baltimore, MD.
She is currently listed as a court-approved attorney for appointment in guardianship cases.
*This blog is for educational purposes and does not constitute legal advice.
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