The Petition for Guardianship is the document whereby a client (through her attorney) requests that the court appoint someone as guardian. Among other basic informational items, the Petition will need to include a description of less restrictive alternatives to guardianship that have been attempted and failed. It is required by the Maryland Code that the Court consider whether there is a less restrictive alternative to guardianship. Here we will explore what some of those less restrictive alternatives may be.

Incapacity Planning Documents

There are three main documents that can serve as an incapacity planning document: Power of Attorney (POA), Advance Medical Directive (AMD) or Healthcare POA, and a Trust. The financial POA and Trust can allow another person to manage the assets of the disabled person. A Trust is only effective for property which is already in the Trust. (Though there may be some alternatives to allow the trustee to fund a Trust with assets outside of the Trust – and the petitioner could request assets be transferred to a trust vis-à-vis a Petition for a Specific Transaction – see discussion below). The AMD or healthcare POA can allow an agent to make healthcare decisions (up to and including ‘pulling the plug’) and decide where a person lives. These are the most common less restrictive alternatives to a guardianship.

Guardian of the Property

It may be counterintuitive to consider a Guardian of the Property to be a less restrictive alternative to guardianship of the person, but it may be an effective tool that is less restrictive than a guardianship of the person. Consider this difficult proposition: would you rather give up control over decisions affecting your person or those affecting your money? While neither is ideal, most would give up control over their money in exchange for control over decisions affecting their person. When used in conjunction with a surrogate decision maker pursuant to the Maryland Health Care Decisions Act as codified in Md. Code, Health Gen. Art. §5–605, then it can allow a disabled person to maintain some control over their lives while making sure that their finances are appropriately managed.

Petition for a Specific Transaction

Now, consider a scenario where an alleged disabled person has a trust in place, and the trustee is able to manage the trust effectively, but property is discovered outside of the trust. The trustee does not have the power to move the property to the trust without court authority. There may also be the need to fund an account with a specific transaction. Consider an inheritance left to someone with a disability who is unable to manage their own finances. Asking the court to place those inherited funds in an ABLE or other appropriate account may allow the Petitioner to get the relief that they want, i.e., management of the disabled person finances, but not require a permanent guardian.

Limited Orders

Many times parents will find that they are unable to communicate with their special needs child’s doctors when their child turns 18. They are often advised that a guardianship is necessary to allow them to make the decisions on behalf of the child. It may not be necessary to take away the ‘child’s’ right to self-determination. Perhaps the adult child needs support in making decisions. A limited Order granting the parents the right to talk to the doctors and deal with financial institutions (among other enumerated powers) can allow the adult child to preserve some independence in their decision-making, but allow the parents to have some comfort in being able to oversee what is happening with their child.

Court Approved Execution of Incapacity Planning Documents

When a doctor performs an evaluation for the purposes of a guardianship, there is a form that they complete called a Physician’s Certificate, which becomes part of the court record. On this certificate the doctor may indicate that the alleged disabled person is able to sign legal documents. Perhaps an attorney was reluctant to draft documents for the alleged disabled person because there were concerns of undue influence or lack of capacity. A court could order the execution of the documents and can additionally order that the documents would be irrevocable except upon further order of the court. That would allow the parties involved to maintain some autonomy for the alleged disabled, but also allow the agent appointed to know that the documents would not be revoked.

Filing for guardianship may be a difficult process with unique challenges for those who do not handle these on a regular basis. If you believe that you need to file for guardianship, then call for a free consultation.

David A. (Andy) Hall, Esq.
King|Hall LLC
5300 Dorsey Hall Drive
Suite 107
Ellicott City, Maryland 21042
410.696.2405

andy@kh.legal