The reasons and circumstances where a guardianship may be appropriate are numerous. However, courts are not willing to grant a guardianship to protect the interests of a sick or disabled individual without an adequate showing of evidence. The evidentiary showing must prove that a lack of capacity exists and furthermore this showing must be supported by medical evidence. For individuals seeking to establish a guardianship to handle the affairs of a loved one who with a degenerative condition such as dementia, or for an individual who has never been able to make decisions on his or her own behalf such as an eighteen-year-old with certain forms of autism or downs syndrome, for example, working with an experienced attorney is the best way to secure the guardianship.
William S. Heyman is an experienced attorney and the founder of the Heyman Law Office. Mr. Heyman founded the office to provide a level of client support and client service that is uncommon in the industry. When you work with Mr. Heyman or any lawyer on his legal team, you can expect strategic, on-point guidance combined with responsive and individualized personal attention.
Why Is a Guardianship the Appropriate Legal Means to Protect the Interests of Another?
At the most basic level, a guardianship is a court authorized legal procedure with the goal of “protect[ing] those who, because of illness or other disability, are unable to care for themselves.” The Maryland guardianship statute can allow for a trusted individual to handle the affairs of a person who is unable to provide for his [or her] daily needs sufficiently to protect his [or her] health or safety. In Maryland, there are two forms of guardianship – guardianship of the property (which gives the guardian control over the disabled person’s financial affairs) and guardianship of the person (which gives the guardian the power to make decisions on medical care, living arrangements, and other aspects of the disabled person’s life). Usually, both forms of guardianships are appropriate and often the court appoints the same guardian (if qualified) to serve as both guardian of the person and guardian of the property. The guardianship can be established for a number of reasons regarding a lack of capacity including:
- Any disability giving rise to a lack of capacity
- Alzheimer’s disease
- Mental illness
- Dementia
- Severe learning disabilities
- Traumatic brain injuries
- Stroke
- Effects of severe alcohol or substance abuse
Through the guardianship, a trusted individual can act as a caretaker for the interests of another. This can include making major life decisions, handling finances, paying bills, safeguarding of property, and handling other aspects of life that the individual is unable to cope with due to their condition and despite their best efforts.
Where Should I File a Guardianship Petition?
Typically petitions to establish guardianships are filed in the county where the disabled individual resides. If the individual is in the hospital, it is often possible to file in the jurisdiction where he or she is hospitalized.
What Elements Must A Guardianship Petition Satisfy?
As a legal filing, there are certain elements that Maryland Rules 10-201 and 10-301 require a petition for guardianship to satisfy or the petition will be denied. There are three elements that every guardianship petition must address. Furthermore, the information provided regarding each element should be detailed and make use of specific, concrete evidence. In general, the items that must be addressed in a petition are:
- The person lacks sufficient capacity – The party requesting a guardianship must be an interested person (having certain relationships with the potential disabled person) and must show that the potential disabled person is unable “to make or communicate responsible decisions concerning his [or her] person.” The petitioning party should provide examples of the individual’s lack of ability to make or communicate these decisions. The lack of capacity should be evidenced by medical tests conducted by at least two licensed physicians, one licensed physician and one licensed psychologist, or one physician and one licensed certified clinical social worker.
- The cause of the insufficient capacity – Maryland state law holds that the lack of capacity can be caused by “any mental disability, disease, habitual drunkenness, or addiction to drugs.” Therefore information regarding the nature of the disability must also be provided.
- No less restrictive form of intervention is available – Since a guardianship is an extraordinary step, a court requires a showing that no less disruptive and means of ensuring that individual’s health and safety exist. Ideally the petition should include previous attempts to manage the individual’s affairs despite their condition and the reasons why these methods were not feasible.
Along with addressing these elements, the petition must also include certain legal proofs. Furthermore, an appearance before the court is required. There also are additional procedures that must be followed, and the court will appoint an attorney for the disabled person if she or he does not already have an attorney. This is done to protect the alleged disabled person’s rights, as if a guardianship is granted, the disabled person will lose the right to exercise decision-making authority over basic areas of life, such as how to manage one’s finances, where to live, whom to live with, where to work, etc.
An Experienced Maryland Guardianship Attorney Can Guide the Process
If you are seeking to provide the care and support your loved one needs through the establishment of a guardianship, attorney William S. Heyman can help. To schedule a confidential consultation call the Heyman Law Office at (410) 305-9287 today or contact Mr. Heyman or another member of his legal team online.