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 as long as possible. Often, the answer to that question is to initiate a guardianship proceeding on behalf of that disabled adult.
I. What is an adult guardianship?
An adult guardianship is a formal court process that used to appoint someone (“the guardian”) to act on behalf of the court to manage a disabled person’s care or property. 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. A guardianship proceeding can seek the appointment of just a guardian of the person, just a guardian of the property, or both.
II. 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.
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.
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. Establishing a guardianship of a person will be necessary in two primary situations. One is where the alleged disabled person failed to execute a health care power of attorney and certain medical procedures are necessary that require consent. Another typical scenario situation is when more than one person in the family wants to care for an alleged disabled person, and the family is unable to resolve this conflict on its own.
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 psychologist or 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.
Amenta Law Firm
An Estate Planning & Elder Law Practice
What Will Be Your Legacy?
Create peace of mind with a plan that secures your legacy, preserves hard earned assets and passes them on to the ones you love.
Amenta Law Firm
Estate Planning Questions and Answers
An Estate Planning & Elder Law Practice
Call, Text or Email Us Today For A Free Consultation
No matter what your elder law or estate planning goals are, we will work with you to make sure they are achieved. As your advisor and partner, we will meet with you, outline your goals, draft your documents and help you execute your plan. Contact us today to discuss your estate planning and elder law issues.
If you have any questions after the plan is in place, we are only a phone call, email or office visit away. In addition, if you sign up for our monthly newsletter, we will provide you with news updates, advice and tips regarding elder law and estate planning issues. Contact us today to discuss your estate planning and elder law issues.
Amenta Law © All Rights Reserved.