Guardianship is the process wherein a circuit court orders a guardian for either a minor or an adult person because that person is disabled and cannot handle his assets or care for himself or both; or, in the case of a minor person whose parents are deceased, orders that a guardian be appointed to care for that minor person and/or that minor person’s property.
The guardianship process includes a number of checks and balances to ensure that the person who is in need of a guardianship is protected. The process begins with a petition that explains why the individual is in need of the guardianship; a recent medical report/record explaining why, medically, the individual is unable to care for himself or his assets; an inventory of assets; a listing of names and addresses of “Interested Persons” and how each Interested Person is related to the person in need of the guardianship; and often the recommendation of the lawyer who will represent the person in need of the guardianship and who is independent of the p person who seeks to be appointed guardian; as well as other related information.
The court orders that a number of acts be performed before a court hearing such as the assigning of a hearing date; the mailing of a notice to the person in need of guardianship explaining the basic rights that the person has, including the right to object to the guardianship or to the appointment of the person proposed to be the guardian; as well as the mailing of a notice to the Interested Persons, who are often relatives of the person in need or guardianship or persons or entities that currently provide financial assistance to the person in need of guardianship, such as Social Security, local service providers, or persons or entities that provide residential services.
A court ordered and appointed attorney visits the person in need of the guardianship to evaluate whether it is in the best interests of that person to have a guardian ( whether the person truly needs the guardianship) and to determine if the person seeking to be the guardian is doing so for self gain or for a reason that is not beneficial to the person in need of guardianship.
The lawyer who has the responsibility to represent the person in need of guardianship must meet with that person to be sure that his client wants the guardianship and believes that the proposed guardian will act properly and in his/her best interests. The lawyer reports to the court the reasons he or she believes the guardianship is appropriate or not appropriate by filing a written answer to the court. Interested Persons also have an opportunity to inform the court of their reasons for or against the appointment of a guardian as well as proposing someone else to be appointed.
The most significant aspect of the process is the court hearing in which testimony is given under oath regarding whether the guardianship is needed and whether the proposed person is fit to undertake the responsibility of being a guardian.
The person in need of a guardian has the absolute right to be present at the hearing.
Finally, if the circuit court judge is certain that the requirements as described above have been met, then the judge will order the appointment of the guardian with all or part of the following authority: guardianship of the assets only of the person and/ or guardianship of the person who needs the care.
The guardian is in the role of a fiduciary and has the duties of loyalty, of accountability, and of placing the interests of the person ahead of the interests of the guardian. Accountability to the court usually is required no less than once a year. The accounting must show the income and expenses of the guardianship and must provide sufficient detail to satisfy the Guardianship Clerk at the circuit court that the funds expended meet legal standards as set forth in the Estates and Trusts Article of the Annotated Code of Maryland.
Unusual or large expenditures of the person’s funds will require court approval. The controversy that seems to be the most frequent problem arises when a minor receives a large award in a personal injury case or is the beneficiary of a large insurance policy and the guardians, who may also be the parents of the minor, want to fix up their home, build a swimming pool, or purchase an expensive recreational vehicle.
Guardianships can be terminated, for example, when it can be shown that the person has become able to care for himself or has become able to handle his financial affairs or has reached majority at age eighteen.
Fredric Antenberg is a Howard County attorney who also performs legal services in the practice of guardianship and who has represented many persons who want to become guardians as well as persons in need of having a guardian appointed for them. He will be able to assist you in navigating through a process that has many challenges. Call Fred today at 410 730 4404.