Maryland Estate Litigation

Tag: Maryland Guardianship

A Primer on Guardianships – Part Four – Understanding Incapacity

by David A. (Andy) Hall

Clients often talk to us about whether someone is competent to execute legal documents such as a will or a power of attorney (POA).  Talk of competency is generally putting the cart before the horse.  Competency is a legal term, but it has to do with whether a person lacks legal competence, e.g., they are a minor, or they have been adjudicated incompetent.[1]

From an estate planning perspective particularly where the goal is avoid a guardianship, the question is whether someone has capacity to make decisions or execute planning documents. [2]  The capacity required to execute a will is the ability of the testator/testatrix to understand the nature of their assets and the objects of their bounty.[3]  Put more simply, does a person know who their children and/or grandchildren are, and do they know what “stuff” they own.  In order to devise[4] property to a relative, a testator/testatrix[5] needs to know the property they have and who they are giving the property.  It makes sense from an intrinsic level that you need to know these two points in order to give something away otherwise someone could give away things that are not theirs to people they do not know, which is generally not how people approach estate planning.  All in all, the capacity needed to execute a will is pretty low.  A will, however, will not obviate the need for a guardianship.  Additional incapacity planning is required.

The capacity required to execute a trust is the same as that required to execute a contract, which requires that the party must understand the nature of the business conducted. For contracts, the more complicated the contract, then the higher the level of understanding required to be able to execute the contract.   This holds true for advance medical directives (AMD) and POAs.  Overall, the capacity to execute a will is less than the capacity required to execute a trust or other incapacity planning documents (AMDs and POAs).

Incapacity planning documents are important in the realm of avoiding guardianships.  Most of these documents have explicit nominations for persons to serve as guardian should the need arise, but they also serve the role of allowing an agent to make or communicate decisions for a principal during a period of incapacity.  Without these documents, it may become necessary for a relative to file for guardian of the person and/or property.

A guardian of the person may be appointed upon the following grounds:

Grounds. – A guardian of the person shall be appointed if the court determines from clear and convincing evidence[6] that a person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person, including provisions for health care, food, clothing, or shelter, 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.

Estate & Trusts § 13-705(b).  There are three operative components of the grounds for filing a guardianship of the person.  First, the alleged disabled lacks “sufficient understanding or capacity to make or communicate responsible decisions concerning his person.”  Id.  Second, this is due to “mental disability, disease, habitual drunkenness, or addiction to drugs.” Id. Third, there is “no less restrictive form of intervention.”  Id.

Focusing on the first basis, because of the person’s mental disability or other cognitive impairment, the person lacks capacity to make or communicate decisions.  This covers someone in a temporary or medically induced coma to someone who’s dementia has progressed to a point where they can no longer interact with others in any normal sense of the expression.  It can also cover someone who is habitually drunk or addicted to drugs.[7]  A guardianship of the person is necessary because the alleged disabled did not have proper incapacity planning documents in place and are unable to sign documents appointing a healthcare agent to make decisions on their behalf.  Physically a person may still be able to sign and there are many cases brought where someone has been unduly influenced to sign particular estate planning or ancillary documents, but that does not mean that they possess the contractual capacity in order to execute an AMD or POA.

If after a court finds the alleged disabled is unable to make or communicate decisions due to mental disability or other cognitive impairment and there is no less restrictive alternative, then the court will appoint and guardian of the person.  After the appointment of a guardian, then a person has been legally adjudicated incompetent to make legal decisions.  Thus, it is after a long process that the conversation about whether someone is competent is appropriate from a legal perspective.

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.

David A. (Andy) Hall, Esq.
King|Hall LLC
5300 Dorsey Hall Drive
Suite 107
Ellicott City, Maryland 21042
410-696-2045

andy@kh.legal

 

[1] In criminal law, competency is the ability of the accused to stand trial and participate in one’s defense.

[2] Note that this distinction is muddled by the Maryland Code, specifically, Estates & Trusts Art. § 4-101 states “Any person may make a will if he is 18 years of age or older, and legally competent to make a will.” (emphasis added).

[3] Sellers v. Qualls, 206 Md. 58, 66, 110 A.2d 73 (1954).

[4] Give away pursuant to a will. See Black’s Law Dictionary [Third Pocket Edition] p. 207 (2006).

[5] A person executing a will.

[6] “To be clear and convincing, evidence should be ‘clear’ in the sense that it is certain, plain to the understanding, and unambiguous and ‘convincing’ in the sense that it is so reasonable and persuasive as to cause you to believe it.” Maryland Civil Pattern Jury Instructions § 1:13 (2013).

[7] Note the language used in the code, it is not referring to someone that has a drinking problem or casually uses drugs.  Also, the use of the intoxicants must prevent them from making or communicating decisions, not necessarily making poor decisions.

A Primer on Guardianships – Part Three – Guardianship of the Property

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.

David A. (Andy) Hall, Esq.
King|Hall LLC
410-696-2045
5300 Dorsey Hall Drive
Suite 107
Ellicott City, Maryland 21042
andy@kh.legal

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