by David A. (Andy) Hall
Many times clients will come for an appointment with an elder law attorney because their spouse or parent is no longer able to communicate decisions about their health or person. This can be the result of a progressive condition such as Alzheimer’s disease, or from a sudden onset, such as a fall resulting in a traumatic brain injury (“TBI”). The consequence can be the same if the alleged disabled person (“ADP”) does not have a healthcare power of attorney (“POA”) or advance medical directive (“AMD”) in place. Many Americans do not have incapacity planning documents.
A healthcare POA or AMD allows the person nominated to serve as the agent for the ADP. This means that the agent can make healthcare and other personal decisions for the person that is no longer able to communicate those decisions. The most common context is making decisions about healthcare matters, i.e., whether to select a certain course or treatment, or whether to decline treatment because the ADP has made their wishes known regarding when they no longer want treatment.
Without this document, then a loved one can make decisions for the ADP pursuant to the Maryland Health Care Decisions Act as codified in Md. Code, Health Gen. Art. §5–605. Where the ADP has not nominated a person, then after two physicians determine that the person can no longer make decisions for himself, then the following people may serve as surrogate (in priority of the order listed):
- A guardian for the patient, if one has been appointed;
- The patient’s spouse or domestic partner;
- An adult child of the patient;
- A parent of the patient;
- An adult brother or sister of the patient; or
- A friend or other relative of the patient who meets the requirements
Id. While this statutory recognition is great for ad hoc or crisis situations, it may not be a viable long term solution for clients. Sometimes the ADP’s illness will drive them to fight against decisions which are objectively being made in their best interests. Then the loved one in that situation will want the imprimatur of a court order.
The Circuit Court in the Maryland County where the ADP resides or is admitted to receive medical treatment is the proper venue for filing for a guardianship and it has the authority to appoint a guardian. Md. Rule 10-201; Estates & Trusts § 13-704(a)(2). The Petition is the document whereby a client (through her attorney) requests that the court appoint someone as guardian. Among other basic informational items, the Petition will need to include: a description of less restrictive alternatives to guardianship that have been attempted and failed; facts as to the need for a guardianship; and two certificates signed by medical doctors (or one can be signed be an licensed psychologist or licensed clinical social worker) attesting to the ADP’s need for a guardianship. The timing of the certificates is important as one needs to be completed within 21 days of filing the petition. A seasoned guardianship attorney will give you a checklist of the required documents and information in order for the Petition to be accepted by the Court.
The Petitioner (the one filing for guardianship) has to meet the burden of proving that the ADP:
- Lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person
- Because of any mental disability, disease, habitual drunkenness, or addiction to drugs,and
- That no less restrictive form of intervention is available which is consistent with the person’s welfare and safety
Estates & Trusts § 13-705.
The Court will appoint an attorney for the ADP, and it is very likely that the court appointed attorney will be paid out of the ADP’s assets. For a married couple, this can mean that the two parties will be paying for both sets of attorney’s fees. It can seem counter-intuitive to have to pay for an attorney to fight against you, but a guardianship seeks to take away the inalienable right of self-determination regarding one’s person. A court will not do so lightly.
Consult with your fiduciary litigation attorney to go over the options regarding a loved one who can no longer make decisions for themselves and has not executed incapacity planning documents. If you have not already done so, then consult with an estate planning attorney to prepare for incapacity. It is truly a case where, as Benjamin Franklin said, “An ounce of prevention is worth a pound of cure.”