GUARDIANSHIP
When someone you care for has a condition that prevents them from making decisions regarding their medical care and finances or has fallen prey to financial or physical abuse in a vulnerable time in their life, it may be time to consider seeking guardianship. Whether it is an elderly parent, hospitalized family member or disabled adult child child, our team has a broad range of experience representing petitioners, respondents and interested persons in guardianship matters and are equipped to zealously advocate on your behalf.
WHAT IS GUARDIANSHIP?
Guardianship is a legal process, utilized when a person can no longer make or communicate safe or sound decisions about their person, and/or property or has become susceptible to fraud or undue influence. A guardian can be appointed to make personal care and medical decisions, financial decisions, or both. The person appointed to make decisions regarding personal and medical care is called the “Guardian of the Person.” The person appointed to make decisions about finances is called the “Guardian of the Property.”
The court can appoint one person to be the guardian of the person, another as guardian of the property, or the same individual as both.
Determining that a loved one needs a guardian is difficult enough, but the process to become a guardian can feel overwhelming, especially without the proper planning in place or in the midst of a family that cannot agree on the best course of action. It can feel like a tremendous weight on your shoulders or the shoulders of loved ones. Many naturally assume that a close and trusted relative will be appointed as guardian, but this may not happen without effective representation. In many cases, if you do not present a compelling case for your own appointment as guardian, the Department of Social Services or local Department of Aging may be appointed as Guardian of Person and in many more cases an attorney unknown or unrelated to the individual may be appointed as Guardian of Property. In these events, strangers become responsible for the intimate details and decisions of your family member’s life.
The attorneys at King Hall have represented petitioners, respondents and interested persons in hundreds of guardianship proceedings. They have also served as Guardian of the Person and Property themselves and have extensive experience in guardianship practice including trials by jury and arguing before the Court of Special Appeals.
“Guardianship is not simply filling out a form and a guardian is appointed. It is a contested process that can quickly overcome the unprepared petitioner.”
– David A. (Andy) Hall
HOW DOES THE PROCESS WORK?
Before initiating a guardianship proceeding, petitioners are counseled to make sure that they have explored all less restrictive alternatives to guardianship. Establishing guardianship may remove sacred legal rights from an individual and should only be considered after all less restrictive alternatives have proven ineffective.
If you have exhausted all less restrictive options (or believe that they would be futile) and have made the decision to seek guardianship, you may be asking yourself “Do I really need an attorney to do this?”
Maryland law requires that the person you seek guardianship for to have an attorney, and the court will appoint one to represent him or her if they do not or cannot choose an attorney of their own. Because guardianship proceedings are very serious and can deprive a person of many fundamental rights, as the petitioner, you should have an attorney to assist you with the process on your behalf. In more and more cases, courts are opting to appoint the Department of Social Services or Department of Aging as Guardian of Person and attorneys as Guardian of Property.
Before petitioning for guardianship, the petitioner must first determine the type of guardianship they are seeking for the alleged disabled person. The petitioner can request to become guardian of person, guardian of property, or both.
To begin the process of becoming a guardian, an individual must submit a petition for guardianship to the circuit court along with two certificates from medical professionals that prove that the alleged disabled person lacks the ability to make responsible decisions relating to their health and finances.
A petitioner has the burden to prove that the alleged disabled person is in fact disabled and who the most appropriate guardian is. For that reason, we recommend that petitioners have trusted and effective legal representation to help guide them through the process. On the other hand, if the disabled person does not have representation that they have chosen on their own, the court will appoint an attorney to advocate on their behalf. The Respondent is guaranteed an attorney. Petitioners should have their own counsel to navigate the difficult process of guardianship.
After the petition is filed, the alleged disabled person and any other interested persons typically have 20 days to respond to a “Show Cause Order” requiring them to respond to the petition. If a party fails to respond, the Court may decide without their input being heard.
A hearing is scheduled to address whether or not the alleged disabled person actually needs a guardian and if so, to identify the most appropriate guardian. If it is determined that the person is in fact in need of a guardian after a hearing on the merits, the court will appoint a guardian of person, guardian of property, or both.
If the court determines that a guardian of person and/or property is necessary, the court will issue a written order appointing a guardian. The Court will decide what powers the Alleged Disabled Person retains, if any.
CASE RESULTS
The attorneys at King Hall successfully defended a respondent in a guardianship case tried in front of a jury from the imposition of a guardianship over his person.
The attorneys at King Hall prevailed in a four day guardianship trial over the objection of the respondent and his five expert witnesses to have our client appointed as guardian.
The attorneys at King Hall have resolved multiple guardianship cases without the need for a contested trial utilizing our broad experience to craft solutions through mediation.
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