What happens when someone becomes disabled and can no longer manage his or her financial affairs? Perhaps that person has dementia, suffered a stroke, or has some other ailment or injury that renders that person unable to act. That person’s financial affairs must be put in order, and kept in order, so that the financial needs of that person can be taken care of for as long as possible. Often, the answer to that question is to initiate a guardianship proceeding on behalf of that disabled adult.
- What is an adult guardianship?
Guardianships are a method of surrogate decision-making whereby someone is designated by a court to make decisions for another who is unable to do so on his/her own. Guardianship is a formal court process in which the court finds that a person is unable to manage his or own person or affairs because of disease or disability. The court appoints a guardian to act for that person and make decisions affecting his or her person, property, or both. The appointment of a guardian means that the person will no longer be able to make decisions about his or her personal life, property, or both.
A guardianship proceeding is necessary when (i) a physician, psychologist, or certified clinical social worker determines that a disabled person is unable to make responsible decisions concerning his or her medical care or financial matters, usually because of a physical or mental disability; and (ii) there are no alternatives available to a guardianship, such as a general financial power of attorney or a health care power of attorney. A court will review the testimony and the evidence regarding whether a person is, in fact, disabled, and if so, will determine who should be the guardian. Then, the court will issue an appropriate court order appointing a person to serve as the guardian of the disabled person on behalf of the court.
In Maryland there are two types of guardians. One type is called a guardian of the person. In this type of guardianship proceeding, the court is requested to appoint someone to make health care decisions for a disabled person or be responsible for finding the proper home setting for that person.
The other type of guardian is called a guardian of the property. A guardian of the property is responsible for managing the assets and paying the bills of a disabled person.[1] A guardianship proceeding can seek the appointment of just a guardian of the person, just a guardian of the property, or both.
- When would a person need a guardian?
With our population living longer, there may come a time during an elderly person’s life when someone else may have to make decisions concerning his or her medical care or financial affairs. But at what point can a person no longer, legally, make those decisions? When is he or she legally “incompetent?”
Legal discussions on this issue refer to a person’s “capacity,” rather than “competence.” Mental capacity is one of the most difficult of legal questions because it is not easy to determine the point in the progress of a disease at which the faculties are so far impaired that they fall below the standard of legal capacity. Certainly, the mere diagnosis of a disease is not sufficient, in and of itself, to prove that a person lacks the legal capacity to make his or her own decisions. For example, a person may have a diagnosis of Alzheimer’s disease, but still have sufficient capacity to pay bills in a timely manner.
- Guardian of the Person
In connection with a guardianship of the person, a person is legally disabled, or lacks legal capacity, when, because of mental disability, disease, habitual drunkenness, or addiction to drugs, he or she lacks sufficient understanding or ability to make or communicate responsible decisions concerning himself or herself, such as provisions for health care, food, clothing, or shelter, and who, as a result of this inability, requires a guardian of the person.[2]
The mere diagnosis of a physical or mental disability or disease, however, is not sufficient to justify the appointment of a guardian of the person. It has to be found as a fact by the court that this disability or disease impacts the decision-making capacity before a guardian should be appointed. The circumstance encountered often is a person who has been diagnosed with “dementia.” Dementia is a broad diagnosis and many persons with dementia may still retain the ability to make decisions regarding their person. A guardianship is not appropriate unless or until the dementia is affecting these decisions.
Conversely, a competent person (with no diagnosed physical or mental disability or disease) can make what most would consider “irresponsible” decisions and not be eligible for a guardian of the person to be appointed. A good example of this is an adult person of the Jehovah’s Witness faith who is suffering from a terminal illness that would be completely cured by a blood transfusion. Not receiving that transfusion may be considered by many as “irresponsible.” If that person chooses not to have a blood transfusion for religious reasons but is “competent” and is not suffering from a demonstrable physical or mental disability or disease that is impacting their ability to make a decision, the appointment of a guardian is not appropriate. The fact that you or I, or even most people, may disagree with that decision is irrelevant.
Finally, even if a person has a physical or mental disability or disease which is causing him/her to be unable to make or communicate responsible decisions concerning his or her person, the appointment of a guardian of the person would not be appropriate if any other, less restrictive, option is available to protect the welfare and safety of the disabled person. The best example of this is if the disabled person has, prior to his/her disability, executed an advance directive in which an agent has been appointed to make medical decisions, no guardian of the person should be appointed. The rationale behind this is that when a guardian is appointed, the disabled person, in actuality, becomes a “ward of the state.” This imposes a burden on the court system to superintend and monitor the welfare and safety of the disabled person, but also takes certain fundamental (even constitutional) rights away from the disabled person. This should not happen until or unless there is no other alternative.
- Guardian of the Property
A court will establish a guardianship for a person’s property when it can be shown that a person has or may be entitled to property or benefits that require proper management, and is unable to effectively manage that property because of a physical or mental disability or disease (or in several other specific circumstances). When there is a medical condition present, this standard can usually be met by merely showing that a person can no longer balance a checkbook, pay household bills, or handle mail responsibly. At that point, the court can appoint a guardian to act on behalf of the court to manage a disabled person’s property.
But, again, both of these elements have to be present before a guardian of the property can be appointed. People are allowed to make bad decisions when it comes to their property, as long as they have legal capacity. They can make risky investments, give their money or property away, or buy silly or extravagant things as long as they are not doing so as a result of a physical or mental disability, disease, habitual drunkenness, or addiction to drugs.
If a person has no assets, they don’t need a guardian of the property.
The court is the ultimate decider of whether an alleged disabled person lacks the legal capacity to make decisions regarding his or her care or finances. The court must base its determination of disability, however, on supporting medical evidence from qualified health care providers. In order to prove disability, two physicians, a physician and either a psychologist or a certified clinical social worker, must provide to the court verified certificates that describe the medical or psychological diagnoses of the disability. These certificates must be completed fully and completely since, in most cases, the court will make a decision based solely on the information contained in these certificates.
[1] In connection with a guardianship of property, “disabled person” means a person, other than a minor, (A) who has been adjudged by a court to be unable to manage his or her property and affairs effectively because of physical or mental disability, disease, habitual drunkenness, addiction to drugs, imprisonment, compulsory hospitalization, detention by a foreign power, or disappearance, (B) who has or may be entitled to property or benefits that require proper management, and (C) who, as a result of this inability, requires a guardian of the property. Md. Rule 10-103 (b) (2). See also Code, Estates and Trusts Article, §§ 13-101(f), 13-201(c)(1).
[2] Md. Rule 10-103 (b) (1). See also Code, Estates and Trusts Article, §§ 13-101(f), 13-705 (b).
For more information, contact the Davis, Agnor, Rapaport & Skalny attorney with whom you typically work, or one in our Estate, Trust & Guardianship Litigation Practice Group.
