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Proving Incapacity in Maryland Guardianship Cases

Before someone can become the guardian for another adult, they must prove the other adult lacks the capacity to care for or make decisions for themselves. When someone is interested in becoming another person’s guardian and needs to begin proving incapacity, they should contact an experienced Maryland guardianship lawyer as soon as possible.

Steps to Proving Incapacity in Maryland

The first step in proving incapacity in Maryland is to provide the court with two physician’s certificates. The physician’s certificates show that the physician has examined the alleged incapacitated adult and provides evidence of the condition that result from the incapacity.

For example, it will state what, if any, mental conditions the alleged incapacitated adult experiences. The physician certificates may also give evidence or examples of the inability to make financial or legal decisions on their own behalf. It may state that the adult is not familiar with the nature of his or her own assets or it may say that the alleged incapacitated adult generally lacks short term memory, long term memory, or whatever conditions are unique to the alleged incapacitated adult.

Sometimes in cases of extreme mental illness it may be difficult to have the alleged incapacitated adult actually seen by a doctor. For example, you may not be able to convince the alleged incapacitated adult to visit a physician. In that case, there may be an ancillary proceeding that takes place to allow for the examination of the alleged incapacitated adult, which an experienced guardianship lawyer in Maryland can assist you with.

Contesting Alleged Incapacity in Maryland

A contested guardianship is generally one where the alleged incapacitated adult does not agree with the guardian being appointed on his or her behalf. A guardianship proceeding in Maryland can also be contested if another interested person of the ward thinks that the petitioning guardian is not the best person to serve on behalf of the ward. There are a number of different ways that a guardianship proceeding can be contested.

In the event that it is contested, there will be a trial where evidence is put forth regarding the adult’s alleged incapacity.

Process of Contesting Incapacity

In Maryland, the petitioning guardian will file a petition, but if a potential ward contests the guardian, he will file an answer to the petition that cites why he is contesting the guardianship—whether it is because he doesn’t feel that the person petitioning is the right person to serve or because he believes that he has the requisite capacity to make financial and legal decisions on his own behalf. An interested person in the case may also file an answer to the original petition reciting reasons he or she is contesting the guardianship proceeding.

Role of Eyewitness Testimony

Typically eyewitness testimony is necessary in the event that a guardianship proceeding has been contested and the trial proceeding is necessary. Both sides may hire experts to prove the incapacity or capacity of the adult. The experts will examine the adult and provide a report based on their level of expertise about the adult’s ability to make decisions on his or her own behalf.

Contested guardianship is a difficult process to maneuver, which is why having an experienced Maryland guardianship attorney by your side guiding you through the process will be invaluable. Call today and schedule a free initial consultation.