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Christopher B, Esq
Christopher B, Esq, Attorney
Category: Estate Law
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Experience:  Litigation Attorney with education focus on estate planning and tax
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I am questioning the law and how it pertains to guardianship of an Elderly Person. Her hu

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I am questioning the law and how it pertains to guardianship of an Elderly Person. Her husband (and my brother) just passed June 7, 2015. She resides in Cecil County, Maryland, now has a home titled in her name alone after the death of her husband. It involves a country acre with house and large shed as well. I am presently the controller of my brother's Estate, have been approved to be my sister-in-laws Representative Payee for Social Security matters. I am now trying to be the Guardian of an Elderly Person who has Dementia with Alzheimer's disease.
I need a way to start this process, a probable cost and the length of time it will take to finalize this request in its entirety. Thank you, ***** ***** Stevenson @***@******.***.
Submitted: 1 year ago via LawDepot.
Category: Estate Law
Expert:  Christopher B, Esq replied 1 year ago.
First of all, is your sister in law considered to be incompetent? In that I mean has she been hospitalized or has a physician declared her not able to care for herself? Does she have a power of attorney?
Expert:  Christopher B, Esq replied 1 year ago.
My name is***** and I will be helping you with your question today. This is for informational purposes only and does not establish an attorney client relationship.
First, here are the forms to initiate the guardianship in the state of Maryland:
http://mdcourts.gov/family/formsfinder.html#k.3.36.2d.35
I'm going to take you step by step through the process of obtaining guardianship. The amount of time it takes (sometimes emergency hearings can take place when the persona in need of guardianship is in danger or immediate need and a temporary guardian can be appointed) depends on how busy the court is and when you can get the hearing set on the docket. Also the amount of money required for this process is going to depend on the attorney and the particular circumstances (it will be less if it is contested) and it is possible using the forms I have attached and the statutes and process to do this without an attorney. Of course it will be cheaper without an attorney but this is not advisable if you feel uncomfortable with the process or there are other parties contesting the process. These questions really cannot be answered. Remember this is also going to depend on the condition of your sister-in-law (her level of competence) and whether she has set up a power of attorney in the past to address any financial or health care representatives and whether other interested persons will be raising any objections to you being named as guardian. I apologize ahead of time for the length and the amount of detail but I wanted to be thorough.
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.
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 or independently take care of themselves.
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.
Anyone who petitions a court for a guardianship (the “Petitioner”) must be an interested person as defined under the law. In all instances, a petition must be filed with the circuit court in the county where the alleged disabled person resides. A petition for guardianship of the person may alternatively be filed in the county in which the alleged disabled person is hospitalized or, for a non-resident alleged disabled person, where he or she is then located. Md. Code, Estates & Trusts, § 13-101(j) & Maryland Rule 10-10
See links for statutes:
http://mgaleg.maryland.gov/webmga/frmStatutesText.aspx?article=get§ion=13-101&ext=html&session=2015RS&tab=subject5 and https://govt.westlaw.com/mdc/Document/NA54F80209CEB11DB9BCF9DAC28345A2A?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29
In all instances, a petition must be filed with the circuit court in the county where the alleged disabled person resides. A petition for guardianship of the person may alternatively be filed in the county in which the alleged disabled person is hospitalized or, for a non-resident alleged disabled person, where he or she is then located. Maryland Rules 10-201(b)(1) and 10-301.
See Links for statutes:
https://govt.westlaw.com/mdc/Document/NA6546D009CEB11DB9BCF9DAC28345A2A?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29 and
https://govt.westlaw.com/mdc/Document/NA830F5309CEB11DB9BCF9DAC28345A2A?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29
A petition for guardianship of the property of a disabled person who does not reside in Maryland may be filed in the county in which a petition for guardianship of the person may be filed, or in the county where any part of the alleged disabled person’s property is located. Maryland Rule 10-301(b)(2)
See Link for statute:
https://govt.westlaw.com/mdc/Document/NA830F5309CEB11DB9BCF9DAC28345A2A?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29
The petition should contain detailed information about the Petitioner, the alleged disabled person, and all other interested persons. The petition must also generally provide: (i) a description of the nature of the disability, (ii) how it affects the alleged disabled person’s ability to function, and, (iii) why a guardian should be appointed. Maryland Rules 10-201(c) and 10-301(c)
See Links for statutes:
https://govt.westlaw.com/mdc/Document/NA6546D009CEB11DB9BCF9DAC28345A2A?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29 and
https://govt.westlaw.com/mdc/Document/NA830F5309CEB11DB9BCF9DAC28345A2A?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29
he Maryland Rules specifically require a Petitioner to set forth detailed examples supporting each element of proof necessary to establish a guardian of the person or property. Therefore, in a petition to appoint a guardian of the person, a Petitioner will need to specify facts demonstrating the alleged disabled person’s inability to make or communicate responsible decisions concerning his or her person, as well as describe the less restrictive alternatives that have been attempted and failed. If a guardianship over property is sought, specific examples of the alleged disabled person’s inability to manage his or her property and affairs effectively are required. While not specifically required by rule, it may be a good idea for the Petitioner to include a detailed background of events leading up to the Petitioner’s decision to file the guardianship petition. The petition should “tell a story.” This is especially true when there are complicated circumstances giving rise to the filing of the petition, such as significant medical issues, family discord, or if the matter is expected to be contested. Providing a detailed history can setting the stage for the court and can also protect the Petitioner from accusations of having filed a proceeding in bad faith. This strategy may also ultimately be helpful in assisting the Petitioner to recover his or her legal fees from the guardianship estate. Maryland Rule 10-201(c)(4) Maryland Rule 10-301(c)(4)
See Links for statutes:
https://govt.westlaw.com/mdc/Document/NA6546D009CEB11DB9BCF9DAC28345A2A?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29 and
https://govt.westlaw.com/mdc/Document/NA830F5309CEB11DB9BCF9DAC28345A2A?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29
Accompanying the petition must be two certificates from health care professionals who have examined or evaluated the alleged disabled person certifying that the alleged disabled person is, in fact, disabled and in need of a guardianship. The certificates may be obtained from (i) two physicians licensed to practice medicine in the United States; or (ii) one licensed physician and either one licensed psychologist or one certified clinical social worker. Each certificate must state: (1) the name, address, and qualifications of the person who performed the examination or evaluation; (2) a brief history of that person’s involvement with the alleged disabled person; (3) the date of the last examination or evaluation of the disabled person; and, (4) the person’s opinion as to: (A) the cause, nature, extent, and probable duration of the disability, (B) whether institutional care is required, and (C) whether the disabled person has sufficient mental capacity to understand the nature of and consent to the appointment of a guardian. At least one examination or evaluation must occur within 21 days before the date the petition is filed. Maryland Rule 10-202(a)-(b)
See Link for statute:
https://govt.westlaw.com/mdc/Document/NA68F2C109CEB11DB9BCF9DAC28345A2A?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29
These certificates are admissible as evidence of disability at a guardianship hearing, without presence or testimony of the certifying physician, psychologist, or social worker, unless a request is filed by another party that the testimony be presented in court. These certificates are often the only evidence of disability on which a court will base its determination to appoint a guardian. If you are unable to have the disabled person evaluated because the disabled person is under the control of a person who has refused to permit examination, there is a process available to have the court order an examination. Maryland Rule 10-205(b) and Maryland Rule 10-202(c)
See Links for statutes:
https://govt.westlaw.com/mdc/Document/NA6F281C09CEB11DB9BCF9DAC28345A2A?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29 and
https://govt.westlaw.com/mdc/Document/NA68F2C109CEB11DB9BCF9DAC28345A2A?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29
1. Show Cause Order
After the petition is filed, the court will sign an Order, called a “Show Cause Order,” requiring the alleged disabled person, through his or her attorney, and any other interested person or agency, to respond to the guardianship petition within a certain period of time, usually 20 days from the date they are provided with a copy of the Order. The Show Cause Order will also set the date and time for a court hearing on the guardianship petition. Maryland Rule 10-104
See Link for statute:
https://govt.westlaw.com/mdc/Document/NA57EA6709CEB11DB9BCF9DAC28345A2A?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29
The petitioner is responsible for making sure that the disabled person, his or her attorney, and all interested persons are served with a copy of the Show Cause Order within the time identified by the court in the Show Cause Order. A copy of the guardianship petition, physician’s certificates and other required documents must also be served with the copy of the Show Cause Order. Maryland Rules 10-104, 10-203, and 10-302
2. Appointment of Counsel
After a petition for guardianship of the person and/or property of an alleged disabled person is filed, the court will also appoint an attorney for the disabled person who is not already represented by an attorney of his own choosing. This is required to ensure that the alleged disabled person’s due process rights are not violated during the guardianship proceedings, particularly since the alleged disabled person faces significant and usually permanent loss of his basic rights and liberties. Maryland Rule 10-106; Md. Code, Estates & Trusts, § 13-211(b) and § 13-705(d)(1)
Interested persons play a pivotal role in guardianship proceedings. For example, only an interested person can petition for guardianship. Whether or not the guardianship is contested, a hearing on the guardianship petition will be conducted in the circuit court for the county in which the petition was filed. The two main issues in a guardianship hearing are (1) whether a guardian is needed (i.e., is the alleged disabled person really disabled?) and (2) who is the most appropriate guardian for the disabled person. The Petitioner has the burden to prove both of these issues.
Please let me know if you have any further questions and please positively rate my answer as it is the only way I will be compensated.
Expert:  Christopher B, Esq replied 1 year ago.
Just checking back in, please let me know if I can do anything further. Please positively rate my answer as it is the only way I will be compensated.

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