An Alternative To Guardianship Of The Property For A Disabled Individual
by Joseph Mathis I have previously written about the importance of having a well drafted financial power of attorney (https://www.offitkurman.com/publication/power-of-attorney-why-it-could-be-your-most-important-estate-planning-document/). To recap, “a power of attorney really becomes most important if an individual becomes incapacitated (either mentally or physically), to the point that he or she is no longer able to make financial decisions. If the individual had a well drafted power of attorney in place, before becoming incapacitated, his or her agent will be able to immediately step-in, without any court involvement, and make any financial decisions that the principal would have been able to make if not incapacitated.” Now suppose that the individual does not have a financial power of attorney and the individual is already incapacitated, so that it is now too late for a financial power of attorney to be executed. If that individual owns assets in his or her own name it may be necessary to seek the court appointment of a guardian of the property to manage any assets titled in the individual’s name alone. However, if the individual owns just a few assets titled this way there is an alternative to guardianship under Maryland law that could save the considerable time and expense of obtaining a guardianship. This alternative is that a circuit court may authorize or direct a transaction with respect to the property, service, or care arrangement of the disabled person without the appointment of a guardian. The transactions that may be approved by the court without the appointment of a guardian include, but are not limited to, the payment, delivery, deposit, or retention of funds or property; the sale, mortgage, lease, or other transfer of property; and the purchase of contracts for an annuity, life care, training, or education. This provision can often be successfully utilized to avoid the need for a guardianship of the property for a disabled individual. Even so, this process is not the most appropriate for every situation. You should contact an attorney knowledgeable in this area of law if you would like to discuss this process further.
Joseph Mathis is an attorney in Offit Kurman’s Baltimore/Washington office. Mr. Mathis focuses his practice in counseling and assisting individuals with Elder Care Planning, Estate Planning, and Estate Administration. As part of his practice Mr. Mathis also handles guardianship proceedings for disabled adults and minors. He can be reached at 301.575.0351 and firstname.lastname@example.org.