Does Your Loved One Need a Guardianship?

By Joshua Winger

Unfortunately, sometimes a family member or friend is seriously ill or under age and does not have anyone legally able to assist with health care or financial issues.  In such an event, a guardianship may be necessary.

In Maryland, there are two types of guardianships: (1) a “guardianship of the person”, which is to help someone with health care; and (2) a “guardianship of the property”, which in many states is called a “conservatorship” and which is to help someone with finances (which is broad and also includes property).

Who has priority to serve as guardian is generally based upon the closeness of familial relation, if any, to the person who needs a guardian.  However, above all relations, a person can execute a power of attorney stating who she or he wants for assistance and when she or he wants that person to assist.

There is a broad listing of powers a guardian has by default, but a Court can change the default powers on a case-by-case basis.  Some specific decisions normally require Court approval, such as if a guardian decides an incapacitated person needs to move to a skilled nursing facility (i.e. a nursing home) or if the guardian decides the incapacitated person’s home should be sold to obtain money for the incapacitated person’s care.

The guardian normally also must account to the Court at least annually exactly what happened during the previous year.

Typically, it can take several months to obtain a guardianship.  If need be, a Court can appoint a temporary emergency guardian or issue Orders permitting very specific and limited actions before there is time to appoint a permanent guardian.

Fortunately, there are two main ways to avoid a guardianship, but both of these main ways need to be done before a person becomes incapacitated:

• A person can execute powers of attorney authorizing a person to serve in his or her place regarding one’s own health care or finances. Other common names for a health care power of attorney include advance directive, health care proxy and living will;

• Another way to avoid a guardianship of the property is to create a trust, then transfer property to the trust, and designate a successor trustee to manage the trust in the event you become unable to manage your trust.