In the context of our practice, we are often asked whether it is better to execute an estate plan while in good health, or just wait for the law to step in when someone needs help. We try to explain to our clients the pros and cons of each arrangement. One way to deal with an individual’s assets, when that individual can’t act on their own is guardianship.
A guardianship is a legal arrangement in which a court appoints a person or entity to make personal and medical decisions for someone who is unable to make these decisions for themselves due to incapacity, disability, or other reasons. The person appointed as the guardian is responsible for ensuring the person under their care is provided with adequate care and protection.
To avoid needing a guardian, it’s important to plan ahead and take steps to ensure your personal and medical decisions are legally documented in the event of your incapacity. Here are some steps you can take:
1. Create a Durable Power of Attorney for Healthcare: A durable power of attorney for healthcare is a legal document that allows you to appoint someone to make medical decisions for you if you are unable to do so yourself.
2. Create a Durable Power of Attorney for Finances: A durable power of attorney for finances is a legal document that allows you to appoint someone to manage your financial affairs if you are unable to do so yourself.
3. Create a Living Will: A living will is a legal document that specifies your end-of-life care preferences, such as whether or not you wish to be kept on life support.
4. Create a Revocable Living Trust: A revocable living trust is a legal arrangement in which you transfer your assets into a trust and appoint a trustee to manage them on your behalf. If you become incapacitated, the trustee can manage your assets without the need for guardianship or conservatorship.
What is the difference between guardianship and conservatorship?
A guardianship is different from a conservatorship in that guardianship involves making personal and medical decisions for someone who is unable to make these decisions for themselves, while a conservatorship involves managing the financial affairs of someone who is unable to do so themselves. In some cases, a person may need both a guardian and a conservator. It’s important to consult with an attorney to determine the best legal arrangements for your specific needs.
In some jurisdictions, such as Maryland, the terms are used interchangeably with a guardian appointed for a person, and a guardian appointed for the property.
Commencing a guardianship proceeding in Maryland involves several steps and it is important to follow the best practices to ensure a successful outcome. Here are some best practices for commencing a guardianship proceeding in Maryland:
1. Determine the appropriate type of guardianship: There are different types of guardianship in Maryland, including guardianship of a minor, guardianship of an incapacitated adult, and guardianship of a disabled adult. It is important to determine the appropriate type of guardianship before commencing the proceeding.
2. File a petition for guardianship: The first step in commencing a guardianship proceeding in Maryland is to file a petition for guardianship in the appropriate court. The petition should include information about the proposed guardian, the proposed ward, and the reasons why guardianship is necessary.
3. Provide notice to interested parties: Maryland law requires that interested parties, including the proposed ward, the parents of a minor ward, and any other interested party, be given notice of the guardianship proceeding. The notice should include information about the hearing and the right to object to guardianship.
4. Obtain a medical evaluation: In guardianship proceedings involving an incapacitated adult or a disabled adult, a medical evaluation is required to determine the extent of the person’s incapacity or disability. The evaluation should be conducted by a qualified medical professional and submitted to the court.
5. Attend the hearing: After the petition is filed and notice is provided, a hearing will be scheduled. It is important to attend the hearing and be prepared to present evidence in support of the guardianship.
7. Obtain court approval: If the court approves the guardianship, a court order will be issued appointing the guardian and setting forth the terms and conditions of the guardianship.
8. File annual reports: In Maryland, guardians are required to file annual reports with the court providing information about the status of the ward and the administration of the guardianship.
Overall, commencing a guardianship proceeding in Maryland can be a complex process. It is important to consult with an experienced attorney who can guide you through the process and help ensure that your rights and interests are protected
It’s important to note that guardianship and conservatorship should be a last resort, as they involve the transfer of decision-making power to another person or entity. In some cases, guardianship or conservatorship may be necessary to protect a vulnerable person’s interests, but they can also be costly and time-consuming.
By taking steps to create legally binding documents and arrangements for your personal and financial affairs, you can help avoid the need for guardianship or conservatorship. It’s also important to periodically review and update your estate planning documents to ensure they reflect your current wishes and circumstances. Consulting with an attorney who specializes in estate planning can help you navigate the process and create a plan that meets your needs.