Maryland Guardianship Lawyer

 

When Is Guardianship Appropriate?  If someone you care about suffers from cognitive impairment and is unable to make rational decisions regarding his or her business affairs or health care, or needs assistance with two or more activities of daily living, a guardianship might be appropriate, but not necessarily.

Access to Funds to Pay Bills. Often, a care-giver needs to have access to the disabled person’s funds to pay their bills, or to liquidate assets, sell the home and so forth.  If no power of attorney is in place, guardianship of the property may be the only way to legally transact business for the disabled person.

Guardianship of the Person. Most individuals who are in need of guardianship need someone to make healthcare related decisions for them, for their health and safety, and to ensure they receive appropriate medical care and supervision.

Guardianship of the Property.  When a person is no longer able to manage their affairs, pay their bills, understand what they are doing, or are being financially abused, a guardian of that person’s property is necessary to act on such person’s behalf.  In most cases, it is appropriate to seek guardianship of the person and property. Guardianship proceedings can be costly, so it makes sense to do it once rather than twice, except where circumstances dictate otherwise.

Rob Goldman is a guardianship lawyer with over 30 years of experience serving the elderly, and those who love them. His real world experience helping Seniors, children who are concerned about their aging parents, and care-givers, navigate the legal, personal, relationship and other challenges, provides him with valuable insight that enables him to provide legal and practical guidance they can depend on. ROB GOLDMAN LEGAL SOLUTIONS is the Maryland law firm residents of Harford County and Baltimore County turn to for calm, sensible advice and Peace of Mind.

Mental Incapacity; Cognitive Impairment. Special care is needed when seeking legal guardianship over Seniors, especially frail elderly persons with dementia or other cognitive impairment, or are unable to make rational decisions regarding business or healthcare matters, or susceptible to financial or physical abuse or neglect.

Medicaid & Estate Planning Considerations.  A guardianship attorney who is not proficient with Elder Law, particularly Medicaid eligibility and nursing home issues, may inadvertently cause ineligibility for Medicaid benefits, by transferring assets, making deed changes and so forth. A person in need of  guardianship, who owns real property or has savings, usually needs estate planning legal advice, preferably from a Maryland Elder Law attorney, who typically also is a guardianship lawyer.

Is Guardianship Needed If One Has Power of Attorney?  Guardianship usually is not necessary if valid financial and healthcare powers of attorney are in place. However, if there is disagreement and conflict among family members as to who should be in charge or where the elderly parent should be placed, or of the alleged disabled person is uncooperative, a guardianship may be the best way to obtain the legal authority to protect and care for the mentally incapacitated or otherwise impaired or disabled person.  An experienced guardianship lawyer can review the concerns and issues and help you figure out how best to manage the situation.

Empathy & Understanding. Although legal guardianship may be an effective process, one must not lose sight of the human factor.  The person who needs guardianship typically is struggling to cope with a variety of strong emotions, such as anxiety, fear, frustration and anger. Loss of independence and one’s lifestyle is tough to deal with. Some people don’t cope well and lash out.  Compassion and empathy can go along way to helping such persons reach acceptance and become more cooperative.

What is the Legal Effect of Guardianship?  A guardianship order essentially strips away a person’s legal right to make decisions for oneself and should be used only as a last resort.

Standard of Proof.  A court requires clear and convincing evidence of incompetency before issuing a guardianship order, and may order guardianship of the person, the property or (typically) both.

Maryland Surrogate Caregiver Statute.   This statute was passed to make it easier for family and close relatives to help and represent an elderly person in certain matters without having to obtain a court order.  You can google this statute and see what it enables you to do.  This statute does not authorize someone to handle another person’s financial affairs, transfer real property and enter into certain legal transactions.

Power of Attorney. A Power of attorney is not an option if the mentally impaired person does not meet the legal standard. Don’t assume, talk with an Elder Law attorney. A guardianship order may not be necessary if the person appointed an attorney-in-fact to handle financial, business, and healthcare decisions. However, many powers-of-attorney are not designed to meet the legal and practical needs of seniors, or the senior may not be willing to accept that the time has come to allow the appointed attorney-in-fact to act on his or her behalf. Many seniors fail to get around to taking care of their estate planning needs and by the time a an adult child tries to step in to help have this done, lack of mental capacity may preclude the senior from signing a power-of-attorney or making a Will. Since an attorney-in-fact is an agent of the senior, the senior always has the right to terminate the agency relationship, unless no longer legally competent, – a decision typically to be made by a court.

Recognizing Cognitive Impairment. Symptoms usually manifest gradually and one has to be alert to changes in behavior. Sometimes, there may be a sudden onset of dementia, for instance after a frail elderly person suffers a fall or a traumatizing event.   Symptoms include, for instance, a decline in the person’s attention span, ability to consider issues, memory, disorientation, wandering off, getting lost, use of language, mathematical ability, and ability to follow directions are some of the key indicators of a decline in mental capacity. Other indications may include weight loss and problems with walking, falling, and incontinence. It is also important to consider the effect of medication, pain, stress, depression, and poor nutrition in evaluating whether the person is indeed suffering from cognitive impairment.

The senior should be examined by a physician that specializes in geriatrics and neurology to assess physical and mental well-being. Sometimes, a psychologist or psychiatrist’s evaluation may be needed. In cases where the senior is cooperative and no family dissension is anticipated, an elder law attorney’s assessment that the senior has adequate mental capacity may be sufficient for the senior to proceed with signing legal documents. The closer the call the more likely it is that the attorney will require a medical examination and mental assessment to move forward.

Mental incapacity is not the only basis for obtaining a guardianship order. A senior may pass a mental capacity assessment yet not be able to make rational decisions regarding his or her well-being. Conduct that substantiates concerns that the senior’s health, safety and welfare may be at risk, particularly when the person is frail or has other physical problems and is unable to manage his or her affairs without assistance, may satisfy a court that guardianship appropriate in a particular case.

Everyone, especially individuals over the age of fifty, should have their basic estate planning documents in place. Seniors and those who love them who have a concern regarding planning for disability, quality of life planning, maintaining one’s independence for as long as possible, asset protection planning, planning for the possibility of assisted living and long-term nursing home care, and financial assistance from Medicaid, should invest in a comprehensive consultation to obtain a professional legal evaluation and explanation of one’s rights and options.

Managing Disagreements in the Family Over a Parent’s Care Needs. Ironically, it is often the family members who do the least who object the most, and the person who does the most is unappreciated and under tremendous stress. Sometimes, the problem is due to personality, or self-interest, but often-times there is real caring but a lot of misunderstanding and miscommunication due to past resentments and so forth. A caring, experienced Elder Law attorney may be able to resolve competing concerns and interests.

Financial abuse of seniors and physical abuse of the frail elderly is a growing problem. If you see warning signs, get legal guidance promptly. One the greatest reasons elder abuse occurs and gets worse is that family members want to avoid conflict, don’t want to get involved, or just don’t pay attention. Nip this behavior in the bud   by acting fast!

If you’d like to learn more about guardianship law, please check out our Guardianship Frequently Asked Questions page.

Contact us now to inquire about our guardianship legal services.

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