Montgomery County Guardianship Lawyer
Do you have an adult family member who can no longer take care of themselves or their finances? Or is there a child in your extended family whose parents are absent or unable to provide care? If so, you may need more information regarding establishing a guardianship to help care for them.
In these situations, a Montgomery County guardianship lawyer could provide valuable legal assistance. When someone is unable to care for their own well-being or to make sound decisions regarding finances and property, another person may need to have the legal authority to help them. A practiced trusts and estates lawyer can analyze your family’s situation to determine what may be appropriate.
Types of Guardians in MoCo
Under Maryland law, there are two types of guardianships. The first is a guardian of the person. This type of guardian is responsible for making decisions regarding personal matters such as health care and housing for the incapacitated person (called the “ward”).
The second type of guardian is a guardian of the ward’s property. They are responsible for paying bills and managing the property and finances of the ward. Depending on the circumstances, a ward may need a guardian of their person, their property, or both. If both are needed, the same guardian can serve in both roles.
When Does Someone Need a Guardian?
A guardian may only be appointed for a disabled adult when a court determines that a proposed ward lacks the capacity to care for themselves or their property. Mental or physical impairment or the diagnosis of a disease, even a serious one, are not in and of themselves enough to establish lack of capacity.
Maryland Code, Estates and Trusts, § 13-705(b) establishes that a guardian of the person is to be appointed only when there is sufficient evidence to establish that they lack sufficient understanding or capacity to make or communicate responsible decisions concerning their person regarding health care, food, clothing, or shelter because of:
- Mental disability
- Habitual drunkenness
- Addiction to drugs
In addition, the law requires that there is not a less restrictive option that would be consistent with their welfare and safety. Similarly, § 13-201(c) sets out the legal standard for guardianships over property. In addition, there are different rules for minors that do not require a finding of incapacity or disability.
The court will consider many types of evidence in deciding whether a guardianship is appropriate. This will include medical evidence from physicians and/or mental health providers. Guardianship lawyers in Montgomery County can advise about what types of circumstances may meet the legal and medical criteria for these types of cases.
A guardianship or conservatorship can only exist after a court formally determines that the ward lacks the capacity to manage their own financial or personal affairs and appoints someone to be their guardian. In MoCo, the Circuit Court has responsibility for these proceedings.
The guardianship process begins when a petitioner files the proper paperwork with the court setting out the reasons for the request. The petition must include certain information including certificates from qualified professionals regarding the nature of the proposed ward’s disability. The proposed ward has rights throughout this process, including the right to have their own attorney and the right to a jury trial.
Alternatives to Guardianships
Since guardianships and conservatorships require court proceedings and deprive the incapacitated adult of many of their legal rights, anyone concerned about a disabled loved one should consider other options that may be more efficient or better tailored to the specific situation. In estate planning, “durable powers of attorney” can be a good alternative if the incapacitated person planned ahead and signed their power of attorney while they still had the capacity to do so. Similarly, Advance Medical Directives can help with medical decision-making by pre-appointing someone to make important health care decisions. When it comes to these and other planning documents, a trusts and estates lawyer could help address current family needs while assisting with planning for the future.
Contact a Montgomery County Guardianship Attorney Today
If you have questions about caring for a disabled loved one, you may want to seek help from a caring local lawyer who understands the demands of guardianship proceedings. Although a lawyer cannot guarantee a particular outcome, they can advise you about filing a guardianship petition or other options for caring for your loved one. For more information about getting help with guardianships in Montgomery County, call today.