The Challenges Of Guardianship

By Terry Douglas, Maryland Elder Law Attorney

Douglas Law Office

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The Challenges Of Guardianship

Richard and Evelyn are retired, and have three adult children. Richard, age 86, handled all the finances until he moved to a nursing home. Evelyn, age 82 lives at home. She is becoming forgetful. She missed a few payments to the electric company and now has a shut off notice. She's losing weight because she's not eating, and she stays in her pajamas for days. The children are fighting with each other because one of them wants to move their mother to an assisted living facility against her will.

If an individual becomes incapacitated or otherwise unable to make or communicate responsible decisions regarding their health care, food, clothing, or shelter, or their property and finances, a family member or loved one may have to go to court to seek appointment of guardianship of the person or guardianship of the property or both.

A guardian has legal authority to act on behalf of the alleged disabled person. The court looks at two factors

1. Is there a need for a guardian?

2. If yes, then, who shall serve as the guardian?

Persons who may serve as a guardian
Spouse
Parents
Adult Children
Heirs
Certain government agencies, such as the Department of Aging

Setting up a guardianship is like other matters involving the Court. Lawyers represent all parties, including the disabled person. Accountants manage the finances. Doctors confirm that someone needs to care for the patient. The law requires periodic reports to make sure everyone is looking out for the individual's interest. What's more, all these people must be paid for their services. That could be you.

Choose the method for dealing with your incapacity that is right for you.

In guardianship, you lose control because the judge makes decisions about your care. Long delays are common. You pay a high price because guardianships are expensive to set up and maintain. You lose your privacy because your personal and financial affairs are open to public view. The emotional strain of reporting everything to the Court takes a toll on you and your family.

None of us likes to think that we may become incapacitated.

The greatest gift you can give your spouse and your children is a long term care plan; a plan that you have designed to carry out your wishes when something happens to you.

Act now, while you are competent to make your own decisions.

Alternative to Guardianship Execute a Maryland financial power of attorney and an advance health care directive.