Maryland Estate Litigation

Category: Uncategorized

Courtroom Lawyers and Conference Room Attorneys

by barrettrkingpc

Here in the Information Age we have all the information in the world at our fingertips. You can go on WebMD to search symptoms of an illness before talking to a doctor, Zillow to shop houses before you talk to a Realtor, and to a host of legal form and information sites to look at documents and articles before you talk to a lawyer. Much, however, like WebMD cannot write you a prescription for your ailment and Zillow is not able to settle on your new home for you, those legal sites are unable to appear in court on your behalf to tell your story and make sure you have your day in court.

Where technology was supposed to make our lives easier, simpler, and more convenient, it has often done the opposite. So much of the legal, medical, business and technical worlds have become highly specialized that few professionals can ‘do it all.’ Some lawyers only represent clients in traffic or criminal matters, others handle nothing but Wills and Trusts for their clients.

When it comes to writing your estate plan, the attorneys at King Hall LLC encourage you to find a lawyer that practices only in estate and trust planning. Such an attorney will know the nuances of the estate and tax laws that may affect your family. Yet, sometimes, even that attorney fails to predict the circumstances that lead to your family having to seek counsel to resolve confusion or tension in your estate after you die.

That’s right, not even dying is simple anymore: there are death certificates, estates to be opened, insurance policies and retirement accounts to be claimed by your loved ones, and typographical errors in your carefully drafted Will or Trust that no one saw and no one expected to require a judge to decipher or resolve.

Naturally, the family will go to the attorney who wrote your legal documents to see if she or he can help them. If the attorney wrote it and made the error, then the attorney can fix it, right?  Not always.

Take a look at one of the best kept secrets, Maryland Judiciary Case Search, and see if your lawyer has ever been in court. Better yet, see if your lawyer has been in court for anything that did not name him as a party. Was the court appearance for more than a routine motion, where everyone agreed but just needed the formality of a court order? Did the parties engage in discovery (depositions, interrogatories, document production)? Has the lawyer ever tried a case to a verdict before a jury of your peers? Most transactional attorneys excel at technical thinking and careful, patient drafting but are not the greatest oral advocates in a courtroom. As such, they avoid the courtroom and (should) stick to the conference room. The rigors of contested, complex litigation have harsh and demanding deadlines that detract from the transactional attorney’s ability to counsel and guide clients who are trying to avoid litigation in the first place.

At King Hall LLC, our attorneys have spent years drafting wills, trusts, powers of attorney and advance directives. At the same time, we have years of experience appearing in court on behalf of clients to prosecute or defend estates, trusts and guardianships in cases where the documents were drafted ineffectively by other lawyers or where the documents simply did not envision an unfortunate disagreement amongst heirs.

King Hall LLC attorneys are unique in their experience and ability to both write the estate plan and to appear in court on behalf of Personal Representatives, Trustees, Guardians, Attorneys-in-Fact, healthcare agents, and other fiduciaries as well as beneficiaries, legatees, and the victims of fraud, undue influence, or scrivener’s error. When choosing an attorney to appear in court, look first to King Hall. When looking for an attorney to write your documents, make the same decision.

Barrett R. King, Esq.
King|Hall LLC
5300 Dorsey Hall Drive
Suite 107
Ellicott City, Maryland 21042

A Primer on Guardianships – Part Two – Guardianship of the Person

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.”

David A. (Andy) Hall, Esq.
King|Hall LLC
5300 Dorsey Hall Drive
Suite 107
Ellicott City, Maryland 21042