Do I need to pursue Guardianship over my loved one?

Sometimes the answer to this question is simple, however, more often than not the answer to this question is much more complicated.  The unfortunate truth is that many older adults have long periods towards the end of life where they cannot make decisions for themselves.  

A guardian is a person appointed by the Court to make healthcare or monetary decisions for someone who cannot make these types of decisions because of illness, injury, or disability. A guardianship is a crucial legal tool that allows person(s) to make decisions for the disabled adult.  If the person has an advanced health care directive, medical decision making is already being provided for and a Guardianship of Person would most likely not be necessary. Similarly, if the person has a durable power of attorney for finances a Guardianship of the Property would most likely not be necessary.

An illness, injury or disability can make it impossible for someone to make their own decisions.  Admitting this about your loved one can be difficult.  It helps to think of Guardianships as a way to facilitate the independence of the disabled adult and can often help allow the person to maintain as much self-reliance as possible.  

When becoming a Guardian, you may be tasked with deciding where and how your loved will live, what medical treatment they will receive, whether they should buy or sell their property, and what end of life measures should be taken (to name a few).  The Court is considered the “actual” Guardian with the person appointed as a Guardian acting as mere arm or “agent” for the Court.  A loved one is, in most cases, appointed as Guardian because it is presumed they have the disabled adults’ best interest and personal wishes in mind.  The Court will set the parameters for a Guardianship allowing for certain actions to be taken without Court’s approval whereas major life changes such as changes in level of care from at home to an assisted living facility can only be made by the Court.

When deciding if it’s time to obtain a guardianship, hopefully you’ve had a chance to talk about this with your loved one.  He or she may or may not be capable of providing constructive input.  Once you decide to file for a Guardianship, the Court may appoint an independent attorney to represent the alleged disabled adult in the proceeding. This attorney will meet with your loved and determine if a Guardian is necessary and if you are the best choice to become Guardian.  In addition to this, in Maryland, you must provide the Court with two Certifications from a doctor and/or mental health professional certifying that the alleged disabled is incapacitated.  

Again, we understand how difficult this decision can be.  To further discuss your options and learn more, contact Jessica Markham or Chanel Wainstein at Markham Law Firm.