Estate planning is not simply choosing how your assets will be distributed through your will. It’s a meticulous process that includes the creation of an advance medical directive, power of attorney, and in some cases, a trust, in addition to your will. Together, this set of documents is designed to safeguard your goals, protect your values, and avoid or delay the event of guardianship.

What is Guardianship?
Guardianship is a legal process utilized when a person can no longer make or communicate safe or sound decisions about their body and/or property. A guardian can be appointed to make personal care and medical decisions, financial decisions, or both.

Guardians can be family members or friends, or whichever individual is specified in the incapacitated person’s estate plan. In the event that there are no documented plans for who should take on the guardianship role or the circumstance involves intense conflict, a third party can be appointed.

Guardianship can be a consequence of poor estate planning, or lack thereof — For example, it can be established when the alleged disabled person fails to execute an advance medical directive.

Maryland’s guardianship laws afford alleged disabled individuals a host of protections including rights to counsel, hearing, demand discovery, and demand the presence of physicians at trial.

When is guardianship assigned?
Adult guardianship is employed when a person is deemed incapacitated, or unable to advocate for themselves, to the point where they can no longer make responsible decisions regarding their well-being. Under Maryland law, incapacity is determined by two of the following healthcare professionals:

• Medical Doctors
• Psychologists
• Nurse Practitioners
• Clinical-Level Licensed Certified Social Workers

The alleged incapacitated person must be evaluated by two of the above-mentioned professionals within 21 days of the guardianship petition filing.

Guardianship must be requested through the court, and only a court can appoint a guardian which will strip the new ward of their right to make many important decisions. This drastic measure is considered a last-resort when less restrictive alternatives have been tried and failed.

What less-restrictive alternatives exist?
An example of a less-restrictive alternative is when a loved-one unofficially steps in as the surrogate decision maker for an incapacitated patient in the hospital. While this alternative can be effective in emergency situations, it does not protect the patient’s deeper wishes in the way that an advance medical directive would. Furthermore, the patient would not be stripped of the right to make their own decisions after regaining their capacity to communicate.

Two Types of Guardianship:

Guardian of the Person

When someone is appointed to make and communicate decisions about healthcare, food, clothing, or shelter for another person, they are considered the “Guardian of the Person.”

Guardian of the Property

When someone is appointed to make and communicate decisions about a person’s finances, property, and assets, they are considered the “Guardian of the Property.”

What legal documents are drafted?

Advance Medical Directive

Advance medical directives are documents that allow you to spell out your decisions about things like end-of-life care or what to do in the event of a major accident that leaves you incapacitated — ahead of time.

Financial Power of Attorney

This document permits you to nominate someone to manage your finances in the event that you’re unable to do so yourself.

Both your advance medical directive and financial power of attorney documents should be written up and executed when you’re in good health.