by David A. (Andy) Hall
From one broad perspective, a person can be understood to have control over two sets of decisions in their lives: decisions affecting their person and decisions affecting their property. These are commonly reduced to healthcare and personal decisions (e.g., what medical treatment I receive or where I live), or financial decisions (e.g., what bank holds my money). For a person who lacks capacity to make these decisions, there is a need to have the proper incapacity planning in place.
For financial decisions to be made by another person, there needs to be a financial power of attorney (“POA”) in place. These POAs can come in many varieties. Most financial institutions will have their own forms. The Maryland Legislature and the Attorney General for the State of Maryland have created a specific form, which must be accepted by banks and financial institutions in the State of Maryland – with some limited exceptions. Many attorneys will also have their clients sign a separate durable power of attorney which is tailored to their clients’ wishes. When a person becomes incapacitated and does not have the planning in place, then their loved ones may be left with little alternative to filing for guardianship of the property.
An incapacitated person may not need a guardian of the person if there is an advance medical directive in place, or their loved one is experiencing little issue serving as a health care surrogate. The management of their property may pose a more difficult challenge. Banks are reticent to deal with someone who is not named in a POA. Legal advisors will not release documents. Simply getting information about assets is difficult without a POA.
The Petition for Appointment of a Guardian of the Property must be filed where the “alleged disabled person resides, even if the person is temporarily absent.” Md. Rule 10-301(c); Estates & Trusts § 13-202. (Note that temporarily absent is not defined in the statute, but an often seen context is where a person is incapacitated by an injury and is receiving medical treatment in a different county.) The rule is somewhat different for someone who is not a resident of the State of Maryland. The practitioner should look at the situs (location) of any property or file where a guardianship of the person would be properly filed.
The Petition for Appointment of a Guardian of the Property must also include two certificates signed by medical doctors (or one can be signed be a licensed psychologist or licensed clinical social worker) attesting to the alleged disabled person’s need for a guardianship. The rules are different for somone who is a beneficiary of the United States Department of Veterans Affairs (the “VA”). The VA can supply a certificate in lieu of the two certificates previously noted though for practical purposes it may be easier to get the two physicians’ certificates.
The Petitioner (the one filing for guardianship) has to meet the burden of proving that the alleged disabled person (“ADP”):
- Is unable to manage his property and affairs effectively because of physical or mental disability, disease, habitual drunkenness, addiction to drugs, imprisonment, compulsory hospitalization, confinement, detention by a foreign power, or disappearance; and
- Has or may be entitled to property or benefits which require proper management.
Estates & Trusts § 13-201(c). After a bench trial and a finding of the need for a guardian of the property by a preponderance of the evidence (which means that it is substantially more likely than not that it is true, and is a less rigorous standard than clear and convincing evidence standard necessary for guardian of the person), the judge will appoint a guardian of the property. There is no right to a jury trial for a guardianship of the property.
Filing for guardianship may be a difficult process with unique challenges for those who do not handle these on a regular basis. If you believe that you need to file for guardianship, then call for a free consultation.