My mom has been diagnosed with dementia, and I just discovered she has not been paying her bills. Does she need a power of attorney or a guardianship?
If she has been diagnosed with dementia, she may no longer be able to execute a power of attorney. If that is the case, you will likely need to pursue a guardianship.
What is the difference between a power of attorney and guardianship?
A power of attorney is a written document that a person signs giving a third party the authority to act on behalf of the person signing the power of attorney. There is no court process involved.
Guardianship is the process where the court gives a third party authority over another person’s decision-making. Guardianship becomes necessary when a person is unable to make decisions or handle their affairs, but the person has not signed a power of attorney.
Once a person is no longer able to make decisions or handle their affairs, they are typically no longer able to name someone to act on their behalf through a power of attorney, because they are considered as lacking the capacity to do so.
What types of decisions may a guardian make?
In Maryland, there are two types of guardians: (1) guardian of the person; and (2) guardian of the property. A guardian of the person generally makes the decisions that a parent would make for a minor child, involving issues such as medical, housing, and general welfare. A guardian of the property safeguards property, manages income, and pays expenses. Both guardians of the person and property are subject to the ongoing supervision of the court and must file periodic reports and accountings with the court.
What is the process to obtain a guardianship?
In Maryland, a petition for guardianship is filed with the circuit court, typically in the court where the person alleged to need a guardian resides. For the appointment of a guardian of a person, two certificates of medical professionals are required to be submitted with the petition certifying that the person needs a guardian.
What if the respondent does not agree to the appointment of a guardian?
Once a petition for guardianship is filed, the court must appoint an attorney for an adult who is the subject of the petition, unless the person already has an attorney. The attorney will meet with the person who is the subject of the petition, called the respondent, and determine whether the respondent agrees to a guardianship and agrees who should be the guardian. In Maryland, the attorney’s role is to advocate for the respondent’s wishes, regardless of whether the attorney agrees with the respondent’s position. Even if the respondent is unable to remember what day it is or who is President, if the respondent says they do not want a guardian, it is the attorney’s duty to advocate for this in court. Only if the respondent is unable to communicate his or her position to the attorney does the attorney’s judgment come into play. The attorney for the respondent will file an answer with the court.
What happens next?
The court will schedule a show cause hearing. Different counties in Maryland have different procedures for what happens at a show cause hearing. Typically, the show cause hearing is a quick hearing where the parties state their positions with regard to the guardianship petition to the court. If the parties all agree to the appointment of a guardian as requested in the petition, the court may sign the orders appointing a guardian at the show cause hearing. If the parties do not agree, the court will hold a trial. In most counties, the trial date will be set for a later time. In some counties, however, the court will proceed with the trial at the show cause hearing. The trial is where the disputing parties submit evidence to the court to support their respective positions. If a petition for guardian of the person is pending, the respondent is entitled to a jury trial, if he or she desires one.
At the trial, the petitioner must show by clear and convincing evidence that a guardian of the person is needed and by a preponderance of the evidence (more likely than not) that a guardian of property is needed. If the dispute is over who should be the guardian, section 13-707 of the Estates and Trusts Article of the Maryland Code provides a list of persons who may be appointed as guardian of the person and gives priority to certain classes of person. For example, an adult child has higher priority than a neighbor.
The guardianship process can be fairly straightforward, or it can be lengthy and expensive. How you approach the process from the start is important and can determine what path your case will take. It is important to talk with an attorney with extensive experience with guardianships.
If you need help with the guardianship process, please contact Catherine H. (“Kate”) McQueen at (240) 507-1718.
*This article addresses the guardianship law and process in Maryland. Ms. McQueen is licensed to practice in Maryland, Virginia, and the District of Columbia and can assist you with the guardianship/conservatorship process in all three jurisdictions.
If you are looking for a family law attorney you may contact me for a consultation: firstname.lastname@example.org or 240-507-1718
ABOUT KATE MCQUEEN
Catherine H. “Kate” McQueen is a family lawyer and principal in Offit Kurman’s Bethesda office and is licensed to practice in Maryland, Virginia, and the District of Columbia. Ms. McQueen focuses her practice on the many legal issues that impact families, including all the issues arising out of a divorce, such as custody, child support, alimony, and other financial and property issues. She also has extensive experience in guardianship matters for children and incapacitated adults, including assisting clients in petitioning for guardianship, serving as court-appointed counsel for alleged disabled persons, and serving as court-appointed guardian for individuals when their family members or friends are unwilling or unable to do so.
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