By Rob Goldman, Rob Goldman Legal Solutions, Maryland Guardianship Lawyer
Things You Should Know When Ready to Choose a Guardianship Lawyer
The Parties
The Petitioner is the person who files the Petition asking to be appointed legal guardian. Who has priority to be appointed guardian? The top 4 priorities are:
- The person properly designated by the disabled person
- The healthcare agent
- The spouse
- A parent.
That said, the court retains the right to appoint someone the court deems most appropriate in certain circumstances, such as where there are issues relating to financial abuse and family fighting or disagreement. Consult with an experienced guardianship attorney to minimize the risk of avoiding problems and unpleasant surprises.
The Petitioner’s lawyer represents only the Petitioner. After evaluating and verifying all the relevant information, the lawyer prepares the Petition for Guardianship stating the required facts to support the case, files the Petition, and coordinates service of process.
The Court-Appointed Counsel is the attorney the court appoints to represent the interests of the alleged disabled person and report to the court with recommendations.
Guardian of the Person
This is the person appointed by the court with authority to:
- obtain medical information
- make decisions regarding the disabled person’s healthcare, treatment, and residence, and
- decide who may be in contact with the disabled person
Guardian of the Property
This is the person appointed by the court to act on behalf of the disabled person to manage his or her financial affairs, pay bills, transfer property, make all decisions and sign documents. One does not become personally liable for the disabled person’s debt by becoming guardian. However, there may be civil and criminal liability for wrongdoing, neglect and mistakes. This should not be a problem for anyone who wants to become guardian for the right reasons and gets the legal guidance they need from an experienced guardianship lawyer.
Typically, the Petitioner requests appointment as guardian of the person and the property.
Posting Bond. The Court requires a security bond be posted to protect the guardianship estate against theft or loss of funds, and has the discretion to waive bond. Persons with a criminal record relating to honesty, or bad credit, will not qualify for a bond.
Before the Hearing. Interested persons are served with copies of the Guardianship Petition. Court appointed counsel meets with the disabled person and contacts the interested persons, physicians etc to obtain their input, and may request an accounting.
At the Hearing. An uncontested guardianship hearing typically is brief. The disabled person is not required to attend. The Petitioner may be required to testify. The judge issues an Order Appointing Guardian at the hearing.
After the Hearing. The new Guardian has to attend one class to learn about the responsibilities of a legal guardian. The first Annual Fiduciary Report must be filed within 30 days. The Guardian must open a Guardianship checking account and deposit all funds in that account. For exceptions, speak with your guardianship attorney.
Responsibilities of Guardian. The Guardian has a fiduciary duty to act in and represent the best interests of the ward. Funds need to be managed prudently as required by law. A Guardian may not use the ward’s funds or property for personal benefit. An Annual Fiduciary Account must be filed each year providing a full accounting, verified by account statements, paid receipts, etc.
Role of the Guardianship Court. The Court maintains supervisory authority over the alleged disabled person (the ward) and the guardian to protect the interests of the ward. The Court may order restitution of improperly applied funds and may impose sanctions. The Court may refer matters involving theft of ward’s funds to the State Attorney’s office for criminal prosecution. No attorney’s fees may be paid by the guardianship estate without prior approval by the Court.
Successor Guardian. If a Guardian is unable to continue to serve for any reason, or is removed for cause by the Court, one may petition the court to appoint a Successor Guardian. Failure to submit the Annual Fiduciary Account or mismanagement of funds of the guardianship estate is cause for removal of the guardian.
Transfer of Guardianship to Another State. Authorization from the current guardianship court to transfer, and from the guardianship court of the State to which guardianship is to be transferred, is required before a disabled person, also known as the “ward,” may be legally transferred. This is done by petition. If a different person is to serve as guardian, the court must be petitioned to appoint a substitute guardian.
Termination of Guardianship. Upon the death of the ward, a Petition to Terminate Guardianship must be filed to end the guardianship and authorize the transfer of assets from the guardianship account to the decedent’s estate account.