Understanding Use and Possession or Exclusive Use in Family Law

When families go through divorce or separation, one of the many issues that must be addressed is the use and possession of property, particularly the family home. Here's a simple breakdown of what "use and possession" or “exclusive use” means in family law, how it is applied, and what happens afterward.

What is “Use and Possession” or “Exclusive Use”?

In family law, the term “use and possession” or “exclusive use” means that one party is allowed to temporarily stay in a property, even if it is owned by both parties or titled solely to the other party. This temporary period granted by the court can last for the pendency of the divorce proceeding (in D.C. or MD) or for a period following the divorce (in MD).

Maryland

How Does the Court Award Use and Possession?

To decide who gets to live in the family home, the court looks at the following factors:

• The best interests of any child;

• The interest of each parent in continuing to live the family home; and

• Any hardship the parent would experience if they cannot stay in the family home.

For a parent to be entitled to the use and possession of the family home, the spouse or parent must have custody of a child under the age of 18. 

The court may choose to have either or both parents pay all or any part of:

• Any mortgage payments or rent;

• Any debt related to the home;

• The cost of maintenance, insurance, assessments, and taxes, or any similar expenses related to the home.

How Long Can Use and Possession Last?

Maryland law permits a parent the use and possess a home for up to 3 years post-divorce or post-annulment. However, the order granting the temporary rights to the home will end if the minor child becomes emancipated before the 3-year limit or the parent with the right remarries.

What Happens After the Use and Possession Order Ends?

When the use and possession order of the home ends, the court may order the property to be sold, and have proceeds divided among the parties, or one party may buy out the other's share of the home, depending on the circumstances of the case and the property at issue.

D.C.

How Does the Court Award Exclusive Use?

In D.C., the law uses the phrase “exclusive use” instead of “use and possession.” During a proceeding for legal separation, divorce, or termination of a domestic partnership, a party can ask the court for exclusive use of the marital home or other real property. The court may make this decision if, based on the consideration of factors, it is determined to be just, equitable, and reasonable.

How Long Can Exclusive Use Last?

D.C. law states that a court can give exclusive use of a marital home or residential property to a party during the pendency of the litigation, even if it is not owned by that party. So, until the court issues a divorce or other order disposing of the property issues at the conclusion of the case, the party with exclusive use may remain in the home.

What Happens After the Exclusive Use Order Ends?

At the end of the litigation case, the court may order a property transferred to one party or another, or the property may be sold.

Understanding potential claims for “use and possession” or “exclusive use” in a family matter can protect parties and help them to prepare for all potential outcomes. Our attorneys are experienced in matters involving use and possession/exclusive use orders. Contact our office at 240-396-4373 to schedule a consultation.

Decoding Paternity Tests: Understanding the Science Behind Establishing Fatherhood

In the realm of familial relationships, few matters are as crucial and potentially life-altering as establishing paternity. Determining the biological father of a child has significant legal implications. In this blog, we'll delve into paternity testing, exploring how it works and its broader implications.

Understanding Paternity Testing:

Paternity testing, also known as DNA testing, is a scientific method used to determine whether a man could be the biological father of a child. This process relies on the comparison of DNA samples taken from the putative father, the child, and, in some cases, the mother. Of course, the basic premise underlying paternity testing is that each individual inherits half of their genetic material from their biological mother and half from their biological father.

How It Works:

Paternity tests primarily analyze DNA sequences, which are unique to each individual (with the exception of identical twins).

When conducting a paternity test, DNA samples are collected from the alleged father, the child, and the mother (if available). The samples are typically obtained through a simple and painless procedure, such as buccal (cheek) swabs. Once the samples are collected, the DNA is extracted and analyzed to determine the presence and length of specific genetic markers.

The Comparison Process:

In paternity testing, the DNA profiles of the alleged father and the child are compared to identify genetic similarities and differences. A child inherits half of their DNA from each parent, so approximately half of the child's genetic markers should match those of the alleged father. By examining a sufficient number of genetic markers, paternity testing can establish whether the alleged father is biologically related to the child with a high degree of certainty.

Interpreting Results:

After comparing the DNA profiles, paternity testing laboratories generate a report that indicates the probability of paternity. This probability is expressed as a percentage, indicating the likelihood that the alleged father is the biological parent of the child. In cases where the alleged father is excluded as the biological father, the probability of paternity is typically zero.

It's essential to understand that a paternity test yielding a high probability of paternity (usually 99% or higher) provides strong evidence of biological fatherhood, yet it does not necessarily constitute legal proof. Legal paternity testing involves additional steps, such as chain of custody documentation and sample collection by a qualified third party, to ensure the results are admissible in court. In addition, there may be cases where biological paternity is not established, but a party may still be the legal parent of a child for other reasons.

Legal Limitations to Paternity Testing:

There are other considerations in a legal proceeding involving questions of paternity. In Maryland, there is a rebuttable presumption that a child conceived or born during a marriage is the biological child of the man to whom the child's mother was married at the time of conception. While genetic testing can be used to challenge that presumption, the court must consider the best interests of the child when determining whether to grant genetic testing or whether to admit genetic testing results. In assessing this, the court will consider factors such as the stability of the home environment, whether there is an ongoing family unit and the child's physical, mental, and emotional needs. When a person has raised a child as their own, they may be recognized as a parent with rights and obligations even if they are not biologically related. The legal limitations of paternity testing relate not only to matters of custody and support but also to other areas of the law. For example, paternity tests do not automatically determine inheritance rights in instances where someone has raised a child as their own.

Conclusion:

Paternity testing represents a remarkable intersection of science, technology, and human relationships. With its ability to provide conclusive answers to questions of biological parentage, it has become an invaluable tool in various contexts, from legal proceedings to personal matters. By understanding the underlying principles and methodologies of paternity testing, individuals can navigate the process with greater clarity and insight, ultimately fostering resolution and understanding within families.

At Markham Law Firm, we have experience handling matters involving questions of paternity, and we can help you navigate this complicated area of the law. Markham Law Firm is home to many expert Attorneys who are well-versed in Family Law and will work diligently to help you navigate your legal needs. If you want a lawyer who will work diligently to help you navigate your legal needs or to learn more about our services, please contact our office at 240-396-4373 or click here.

Can a parent travel internationally with children without the other parent’s consent?

What happens when one parent wants to take the children overseas without the other parent's knowledge or consent? It is a question many separated, divorced, or even married parents face, and it carries serious legal implications.

The short answer is usually no, not without the consent of both parents. In most cases, a parent cannot take their child out of the country without the permission of the other parent, especially if there is a custody order or agreement in place. Unilaterally taking your children overseas without the other parent's knowledge can be viewed as international child abduction.

1. What Does the Law Say?

If there is a custody agreement or court order, it likely includes travel restrictions, particularly for international trips. Most agreements and court orders require written permission from both parents or, at a minimum, advanced notice before a child can travel internationally.

In the United States, for example, both parents must sign a child’s passport application unless one parent has sole legal custody.

Many countries are party to the Hague Convention on the Civil Aspects of International Child Abduction, which aims to prevent children from being wrongfully removed or retained across borders. If one parent takes or keeps a child abroad without consent, and that country is part of the Hague Convention with the United States, the other parent can request the child’s return through international legal channels.

Taking a child on a spontaneous trip or a family emergency overseas might seem harmless, but without the other parent’s knowledge or approval, it can still carry serious consequences. The best practice is always to get written consent before international travel. Some airlines and border controls may ask for a notarized travel consent form.

2. What Should You Do If You Are Concerned?

If you are concerned that your spouse or co-parent might try to leave the country with your child:

1. Consult a family law attorney immediately.

2. In certain circumstances, you can request a court order to restrict international travel or require both parents’ consent.

3. In serious cases, some parents may ask for the child's passport to be held by the court or a neutral third party.

4. Consider preventative measures such as adding your child to the Children’s Passport Issuance Alert Program (CPIAP) if the child is eligible for a United States passport.

5. Include specific travel provisions in your custody agreement.

Parenting across borders can get complicated fast when trust breaks down or legal lines get blurry. Whether you are married, separated, or divorced, it is best to be upfront, communicative and legal-minded when it comes to international travel with children. If you are unsure, talk to a lawyer because the stakes are too high to risk guessing.

Markham Law Firm is home to many expert Attorneys who are well-versed in Family Law and will work diligently to help you navigate your legal needs. If you want to contact our office to learn more about our services, call us at 240-396-4373 or click here.

Adopting a Stepchild in Maryland

Adopting a step-child is a beautiful way to formalize and strengthen the bond within a blended family and to afford step-parents and step-children certain legal protections and benefits. In Maryland, step-child adoption involves a legal process to ensure the best interests of the child and the protection of parental rights. 

If both biological parents are living, you will need to obtain their consent to the adoption or a termination of parental rights through legal proceedings. Once consent is obtained or parental rights are terminated, the next step is to file a petition for adoption with the appropriate court in the county where you reside. The petition will include relevant information about the child, the biological parents, and the adoptive parent(s), along with consent forms and other supporting documentation.

As part of the adoption process, you may be required to undergo background checks and a home study conducted by a licensed social worker. The purpose of these evaluations is to ensure the adoptive home is safe and suitable for the child.

After filing the petition, the court will schedule a hearing to review the adoption case. The step-parent, spouse, and child may be required to attend the hearing. The judge will assess whether the adoption is in the best interests of the child and may ask questions to ensure that all legal requirements have been met. If the court approves the adoption, a final decree of adoption will be issued, thus legally establishing the adoptive parent-child relationship. Once the adoption is finalized, a new birth certificate may be obtained for the child reflecting the step-parent's name. 

After the adoption is finalized, it’s important to update legal documents such as the child’s social security card, school records, and medical records to reflect the new parent-child relationship.

Adopting a step-child in Maryland is a significant decision that requires careful consideration and adherence to legal procedures. By following these steps and enlisting the assistance of a knowledgeable attorney, you can navigate the adoption process smoothly and provide your step-child with the love they deserve as a valued member of your family.

If you're ready to embark on the journey of step-child adoption, don't wait to seek legal help. Contact Markham Law Firm today at 240-396-4373 to schedule a confidential consultation with one of our experienced attorneys. We would love to be your reliable advocates as you navigate the adoption process and take your first steps towards building the family of your dreams.

Division of Pension in Divorce

Am I Entitled to a Portion of My Spouse's Pension in a Maryland Divorce?

Divorce can be a complex and emotionally taxing process, especially when it comes to dividing assets. One of the most significant assets in many marriages is the pension plan. If you are going through a divorce in Maryland, you might be wondering whether you are entitled to a portion of your spouse’s pension. Here’s what you need to know about how pensions are handled in a Maryland divorce.

Understanding Marital Property:

In Maryland, property acquired during the marriage is considered "marital property," regardless of whose name is on the title. This includes:

• Real Estate

• Vehicles

• Bank Accounts

• Investment Accounts

• Retirement Plans and Pensions

However, property acquired before the marriage or by inheritance or gift from a third party is generally considered "separate property" and is not subject to division in a divorce.

Pensions as Marital Property

Pensions, like other retirement benefits, are considered marital property if they were earned during the marriage. This means that any portion of the pension accrued during the marriage is subject to division upon divorce. The division of a pension can be complex and often requires specific legal steps.

How Pensions Are Divided in Maryland

Equitable Distribution:

Maryland follows the principle of equitable distribution. This means that marital property is divided fairly, but not necessarily equally. The court considers several factors to determine what is fair, including:

• The length of the marriage

• The age and health of each spouse

• Any agreement between the parties

• The value of all property interests of each spouse

• The economic circumstances of each spouse at the time of the divorce

• The contributions of each spouse to the marriage, both financial and non-financial

  Qualified Domestic Relations Order (QDRO)

To divide a pension plan, a Qualified Domestic Relations Order (QDRO) is often required. A QDRO is a legal order that recognizes the right of the spouse to receive a portion of the pension benefits. It must be approved by the court and the pension plan administrator. The QDRO specifies how the pension will be divided and ensures that the plan administrator pays the ex-spouse directly.

Steps to Divide a Pension:

1. Identify the Pension: The first step is to identify the pension, and review the plan documents to determine the various aspects of the pension, such as when pay status begins, and how payments will be made.

2. Determine Division of the Pension: Commonly, the marital share of the pension is divided equally. Spouses can negotiate a settlement agreement that outlines how the pension (and other marital assets) will be divided. This agreement can be included in the divorce decree.

3. Draft the QDRO: An attorney or QDRO specialist drafts the QDRO according to the terms of the settlement agreement and the requirements of the pension plan.

4. Court Approval: The QDRO is submitted to the court for approval. Once approved, it becomes part of the divorce decree.

5. Plan Administrator Approval: The approved QDRO is sent to the pension plan administrator for review and implementation. The plan administrator will ensure that the QDRO complies with the plan’s rules and federal law.

Considerations for Dividing a Pension:

When dividing a pension, it’s important to consider Survivor Benefits. This guarantees that you will continue to receive benefits if your ex-spouse dies before you.

Conclusion:

In Maryland, you are entitled to a portion of your spouse’s pension if it was earned during the marriage. If you are facing a divorce and have questions about dividing a pension, consulting with an experienced family law attorney at Markham Law Firm can provide valuable guidance and support throughout the process. Call our office at 240-396-4373 or click here to contact us to discuss your specific case needs.

Owning a Business and Anticipating a Divorce: What to Expect for Your Business

If you own a business in Maryland or the District of Columbia and are facing divorce, it is essential to understand how your business may be impacted and what steps you can take to protect your interests. Here is what you need to know about what can happen to your business in your divorce in Maryland or the District of Columbia.

Marital Property vs. Separate Property:

In Maryland and the District of Columbia, marital property typically includes assets acquired by either spouse during the marriage, including businesses started or acquired during the marriage, regardless of whose name is on the company. Separate property, on the other hand, includes assets owned by one spouse before the marriage or acquired by gift or inheritance during the marriage.

Valuation of the Business:

The first step in determining the division of a business in divorce is assessing its value. Business valuation can be complex and will likely require a business valuation expert. Factors considered in valuation may include the business's assets, income, liabilities, market trends, future earning potential, and personal goodwill.

Equitable Distribution:

Maryland and the District of Columbia follow the principle of equitable distribution, which means that marital property is divided fairly but not necessarily equally between spouses. When dividing the value of a business in divorce, the court will consider various factors, including each spouse's contributions to the business, their financial needs and resources, the duration of the marriage, and any agreements or arrangements made between the spouses.

Options for Division:

There are several ways the value of a business can be divided in a divorce:

• Buyout: One spouse may buy out the other spouse's share of the business through a lump-sum payment or structured payments over time.

• Co-ownership: Spouses may choose to continue co-owning and operating a business together post-divorce, although this option can be challenging and may require clear agreements and communication.

• Sale: The business may be sold, and the proceeds may be equitably divided between spouses.

• Offset: The value of the business may be offset by other marital assets allocated to the other spouse.

• There are more options to consider for the disposition of a business in a settlement context than in litigation.

Protecting Your Business:

If you own a business and are concerned about its fate in divorce, there are steps you can take to protect your interests:

• Obtain a prenuptial or postnuptial agreement that outlines how the business will be treated in the event of a divorce.

• Maintain financial records and documentation related to the business, including income, expenses, and assets.

• Consider mediation or collaborative divorce processes to negotiate a mutually acceptable resolution regarding the business division.

• Consult with a qualified family law attorney who has experience handling complex asset division cases involving businesses.

Conclusion

Divorce can be a complicated and emotionally draining process, especially when it involves the division of a business. By understanding your jurisdiction’s laws regarding marital property division, seeking professional guidance, and taking proactive steps to protect your business interests, you can navigate the divorce process with greater confidence and clarity regarding the future of your business.

Understanding Child Support for Self-Employed Parents in Maryland

When it comes to child support, the calculation process is often straightforward for individuals with a traditional paycheck. However, if you're self-employed in Maryland, the process can be a bit more complex. As a self-employed person, understanding how income is calculated for child support purposes is crucial to ensure that you are meeting your obligations while also taking into account the unique nature of self-employment income.

Income for Child Support Calculation in Maryland

In Maryland, child support is typically determined by the Maryland Child Support Guidelines, which provide a formula for calculating child support. These guidelines use the gross income of both parents to calculate the amount of support. But how is “income” defined, especially if you're self-employed?

For self-employed individuals, the calculation process is somewhat different from those who receive a regular paycheck. In general Maryland defines "income" to include compensation received by a parent, including wages, salaries, commissions, and bonuses, but also can include more complicated forms of income, such as profits from a business, interest, dividends and more.

Steps for Calculating Child Support Income When Self-Employed

1. Gross Income Calculation

For self-employed individuals, gross income is determined by taking the total revenue from the business and then subtracting business-related expenses. Maryland law recognizes that self-employed individuals may have significant business-related deductions, but these must be legitimate and directly tied to the operation of the business.

To determine your gross income:

- Revenue: Start with the total income your business generates. This includes all receipts and earnings.

- Deductions: Subtract allowable business expenses. These could include things like office supplies, rent, utilities, business insurance, and any other legitimate business costs. The deductions must be reasonable and necessary for your business.

- Net Income: After you subtract your expenses from your revenue, the result is your net income. This is often referred to as "discretionary income," which is the amount left over after necessary business expenses are accounted for.

2. Add-Backs

While self-employed individuals are allowed to deduct legitimate business expenses, there are instances where certain deductions are “added back” to income when calculating child support, even though they are legitimate from a business or tax standpoint. These may include:

- Depreciation expenses: If you deducted depreciation on business assets, that amount may be added back to your income, as it doesn’t represent actual cash outflow.

- Non-business expenses: Personal expenses that were mistakenly deducted as business costs can also be added back. Or business expenses like rent allocated for a home office could be added back. Add backs such as these are often the source of debate and discretion.

3. Consideration of Non-Monetary Benefits

Another factor Maryland considers when calculating child support is non-monetary income. For self-employed individuals, this could include benefits such as company cars, health insurance, cell phone or other perks that have a value but are not paid in cash. These types of benefits may also be counted as income for child support purposes.

4. Adjustments for Irregular or Seasonal Income

If your income varies significantly from month to month, which is common for self-employed individuals, Maryland courts may average your income over a period of time to determine a reasonable monthly amount for child support. The appropriate period of time is often the subject of debate. An average helps avoid the fluctuations that could occur if a single month of high earnings or low earnings were used to calculate the amount.

What if My Business Isn’t Profitable?

If your business is not generating enough revenue to cover your personal expenses, or worse yet, not earning a profit, it can complicate child support. However, the courts will still expect you to contribute to the support of your child based on what you are capable of earning. Even if your business isn't currently profitable, Maryland courts may still impute income to you based on your previous earning capacity, experience, and potential.

Keeping Accurate Records

For self-employed parents, it is vital to maintain accurate records of both income and expenses. The court may request your tax returns, profit and loss statements, and other documentation to verify your income. If you fail to provide accurate and complete records, the court may be forced to make assumptions about your income.

Final Thoughts

Calculating child support when you are self-employed in Maryland can be more complicated than for someone with a regular paycheck, but it’s still based on the same principles. The court will look at your gross income, considering both your revenue and legitimate business expenses. By keeping thorough records, understanding what qualifies as income, and knowing the potential for income adjustments, you can ensure that the child support calculation reflects your true financial situation.

If you are self-employed and going through a dispute involving child support, consulting with an attorney with experience representing business owners is wise. Reach out to Markham Law firm to see how we can help.

Enhancing Communication Through Parent Coordination: A Guide for Co-Parents

Effective communication is the cornerstone of successful co-parenting. However, after a separation or divorce, maintaining clear and respectful communication can be challenging. This is where Parent Coordination comes in. Parent Coordinators (PCs) are professionals who help co-parents navigate their interactions, resolve conflicts, and improve their communication skills. Let’s explore how parent coordination can transform the way parents communicate and co-parent their children.

The Role of a Parent Coordinator in Facilitating Communication

Parent Coordinators are trained to address the unique dynamics and challenges of co-parenting. Their primary goal is to reduce conflict and improve communication between parents, thereby fostering a healthier environment for children. Here’s how they do it:

1. Mediation and Conflict Resolution: PCs act as neutral mediators, helping parents navigate disagreements and find mutually acceptable solutions. By facilitating calm and structured discussions, they prevent conflicts from escalating.

2. Structured Communication: PCs introduce structured communication techniques that help parents discuss important matters without falling into old patterns of conflict. This might include setting ground rules for discussions, using communication tools, and focusing on specific topics.

3. Developing a Parenting Plan: A well-defined parenting plan reduces misunderstandings and clarifies expectations. PCs assist in creating detailed plans that cover custody arrangements, visitation schedules, and decision-making responsibilities, providing a clear framework for co-parenting.

4. Teaching Communication Skills: PCs educate parents on effective communication strategies. This can include active listening, expressing needs and concerns clearly, and avoiding accusatory language.

5. Emotional Support and Guidance: Navigating co-parenting can be emotionally taxing. PCs provide emotional support and guidance, helping parents manage their feelings and focus on constructive communication.

Benefits of Improved Communication Through Parent Coordination

Enhanced communication between co-parents has far-reaching benefits for both parents and children:

1. Reduced Conflict: Effective communication minimizes misunderstandings and reduces the frequency and intensity of conflicts. This creates a more peaceful and stable environment for children.

2. Consistency for Children: Clear and consistent communication ensures that both parents are on the same page regarding parenting decisions. This consistency provides a sense of security and stability for children.

3. Better Decision-Making: When parents can communicate effectively, they can make joint decisions that are in the best interest of their children. This collaborative approach leads to better outcomes for the entire family.

4. Positive Co-Parenting Relationship: Improved communication fosters a more cooperative and respectful co-parenting relationship. This not only benefits the children but also reduces stress for both parents.

5. Modeling Healthy Communication: Children learn by observing their parents. When parents communicate effectively and resolve conflicts constructively, they model healthy communication skills for their children.

How Parent Coordination Enhances Communication Skills

1. Active Listening: PCs teach parents the importance of active listening, which involves fully concentrating on what the other person is saying, understanding their perspective, and responding thoughtfully.

2. Clear and Respectful Expression: Parents learn to express their thoughts, needs, and concerns clearly and respectfully, without resorting to blame or criticism.

3. Problem-Solving Techniques: PCs introduce problem-solving techniques that help parents address issues collaboratively. This includes identifying the problem, brainstorming solutions, and agreeing on the best course of action.

4. Setting Boundaries: Effective communication includes setting and respecting boundaries. PCs help parents establish boundaries that facilitate respectful interactions and protect the well-being of all parties involved.

5. Conflict De-escalation: Parents learn techniques to de-escalate conflicts, such as taking breaks during heated discussions, using "I" statements instead of "you" statements, and focusing on the issue at hand rather than past grievances.

Conclusion

Parent coordination can significantly improve communication between co-parents, fostering a more harmonious and cooperative co-parenting relationship. By mediating conflicts, introducing structured communication methods, and teaching essential communication skills, Parent Coordinators help parents navigate the complexities of co-parenting more effectively.

Improved communication reduces conflict and stress and creates a stable and supportive environment for children. If you’re struggling with co-parenting communication, consider working with a Parent Coordinator to develop the skills and strategies needed for successful and respectful interactions. Markham Law Firm has years of experience working as a Parent Coordinator; contact us today to speak with one of our dedicated staff members. Remember, the ultimate goal is to prioritize the well-being of your children and create a positive co-parenting experience for everyone involved.

What to think about when obtaining guardianship of an elderly relative, even if you don't have access to them.

Caring for an aging loved one is a delicate and often challenging responsibility. When you’re worried about the safety or well-being of an elderly relative, but you don’t have direct access to them—whether because they live in another state, are isolated, or are being controlled or manipulated by someone else—the situation can feel overwhelming. You may be considering guardianship as a way to ensure their safety, make critical decisions on their behalf, and protect their best interests.

But what happens if you’re concerned for their safety and don’t have access to them? Can you still obtain guardianship in Maryland under such circumstances? In this blog, we’ll explore the process of obtaining guardianship when you are worried about the safety of an elder relative but don’t have direct access to them, the challenges involved, and the steps you can take to protect them.

What Is Guardianship?

Guardianship is a court-appointed arrangement in which one person (the guardian) is given the authority to make decisions on behalf of another person (the ward) who is unable to make decisions for themselves. Guardianship of the Person can be granted for personal care (decisions about medical treatment, housing, and daily living) or for managing financial affairs (guardianship of the property).

For elders who are facing mental or physical decline due to conditions like dementia, Alzheimer's disease, or chronic illness, guardianship can ensure they receive the care they need. However, guardianship is a significant legal intervention and should only be pursued when no other less restrictive options are viable.

Can You Obtain Guardianship If You Don’t Have Access to Your Elder Relative?

Yes, it is possible to obtain guardianship in Maryland even if you do not have direct access to your elderly relative. In many cases, relatives may be isolating themselves, or isolated by others (another friend or family member). However, it presents unique challenges that will require careful planning, evidence gathering, and legal expertise.

Here are some important things to keep in mind if you’re concerned for the safety of your elder relative but can’t easily access them:

1. Concerns for Safety and Well-Being Are Valid

Your concerns for the safety or well-being of an elderly relative may stem from many different factors, such as:

- Isolation or control by another person**: If your relative is living with a spouse, caregiver, or someone else who is preventing you from having contact, you may worry about abuse, neglect, or coercion. This may or may not actually be occurring. Sometimes concerns are unfounded. In ability to see a relative, on its own is not a reason to obtain guardianship.

- Cognitive decline: If your relative has conditions like dementia or Alzheimer’s disease, they may no longer be able to make informed decisions, putting them at risk.

- Physical frailty or medical conditions: If your relative has serious health issues and can’t manage their own care, they may be at risk of injury, neglect, or receiving inadequate care.

2. Consult with an Attorney 

Because guardianship is a legal process that requires careful consideration of the person’s rights and well-being, it is advisable to consult with an attorney who specializes in guardianship. An attorney can help you understand the complexities of the process, help you determine whether guardianship is the right option, and guide you through the necessary legal steps.

In cases where you don’t have direct access to your relative, an attorney can help you navigate the requirements of obtaining medical records that you need for your case.

3. File a Petition for Guardianship

In Maryland, to initiate guardianship proceedings, you must file a petition with the Circuit Court in the county where your relative resides. The petition should include, among other things:

- The reason for seeking guardianship: Clearly explain why you believe your relative needs a guardian. In cases where the person is inaccessible to you, it’s helpful to explain the circumstances (such as isolation, control by another person, or lack of contact) and to provide as much supporting documentation as possible.

- Evidence of incapacity: The court will want to know why your relative cannot care for themselves or make decisions for themselves and this must be proven with two medical certificates.

There are many other requirements for the petition, however these are the two most important.

4. Notification Requirements

Once you file the petition for guardianship, the law requires that certain people be notified, including:

- The proposed ward (your relative), even if they are unable to attend or participate in the proceedings.

- Other interested parties, which may include other family members, close relatives, or anyone who has legal standing in the matter (e.g., existing power of attorney holders).

Once the petition is filed and all notifications are made, the court will schedule a hearing and the case will progress in due course.

Obtaining guardianship over an elderly relative in Maryland when you don’t have direct access to them can be challenging, but it’s certainly possible with the right legal guidance and evidence. If you are concerned about their safety and well-being, the court may grant you the authority to protect them through guardianship. Contact Markham Law Firm for more information.

Understanding the Responsibilities of a Guardian of the Property in Maryland

When an individual becomes unable to manage their own financial or property affairs due to reasons such as age, illness, or disability, the court may appoint a guardian to take over these responsibilities. In Maryland, the term *guardian of the property* refers to someone who is legally appointed to manage and safeguard another person’s financial assets and property. This role is a serious one, and guardians are held to high standards of care and responsibility.

If you're considering filing a petition to request that the court appoint you as a guardian of the property of a loved one, or you’ve recently been appointed, it’s important to understand the scope of the role, the duties it entails, and the legal obligations that come with it. Let’s take a closer look at what this responsibility involves in Maryland.

 1. What is a Guardian of the Property?

In Maryland, a *guardian of the property* is someone who has been appointed by the court to oversee the financial matters and property of an individual who is unable to do so themselves. This individual may be referred to as the *ward*. The appointment can happen due to the ward's incapacity, which could result from physical or mental health issues, including conditions like dementia, Alzheimer’s disease, or other impairments.

While a guardian of the property focuses on managing the ward’s financial assets, a separate individual (sometimes the same person) might be appointed as the *guardian of the person* to handle the personal care decisions for the ward.

2. Duties of a Guardian of the Property

The guardian of the property in Maryland has a fiduciary duty to act in the best interests of the ward. This means the guardian must handle the ward’s finances prudently, with the utmost care and integrity. Some of the key responsibilities include:

a. Managing and Safeguarding the Ward's Assets

A guardian of the property must take control of the ward's financial assets, which can include real estate, bank accounts, investments, and personal property. This includes making sure that assets are protected from theft, loss, or unnecessary depreciation. The guardian must also ensure that the ward’s bills, taxes, and other financial obligations are paid on time.

 b. Preserving Assets Prudently

The guardian is responsible for managing the ward’s assets in a way that is financially sound. This might involve making decisions regarding investments or selling property. They must act in a way that prioritizes the financial well-being of the ward.

c. Regular Accounting to the Court

Guardians must provide regular accountings to the court, usually annually, detailing all financial transactions, including income, expenditures, and investments made on behalf of the ward. These reports help ensure that the guardian is fulfilling their responsibilities properly and transparently. Failure to comply with this requirement can result in the court removing the guardian and appointing a new one.

d. Ensuring the Ward's Financial Stability

Part of the guardian’s duty is ensuring that the ward’s property is managed in such a way that their financial stability is preserved for the future. This includes making decisions that will safeguard the ward’s ability to pay for necessary care, medical expenses, and other needs now and in the future.

e. Providing for the Ward’s Needs

Although the guardian of the property does not make medical or personal care decisions, they may need to work closely with the guardian of the person (if appointed) to ensure that the ward’s financial resources are allocated properly to cover healthcare, living expenses, and other necessities.

f. Paying Debts and Taxes

A guardian must ensure that all debts, taxes, and other financial obligations of the ward are paid. This could include filing income taxes, paying property taxes, and managing any outstanding debts or loans. The guardian must also protect the ward’s credit and avoid actions that could negatively impact their financial standing.

g. Seeking Court Approval for Major Transactions

In certain cases, guardians may need to seek court approval before engaging in significant financial transactions, such as selling real estate. This ensures that the guardian’s actions are always in the best interest of the ward.

 3. How is a Guardian of the Property Appointed?

In Maryland, a guardian of the property is appointed by the court following a legal process. If an individual believes that someone is unable to manage their own affairs, a petition for guardianship can be filed. This petition may be initiated by family members, close friends, or concerned parties.

The court will require medical evaluations and testimony, to determine whether guardianship is necessary and will appoint an attorney on behalf of the allegedly disabled party.  

4. The Fiduciary Duty and Legal Responsibilities of Guardians

As a guardian of the property, you are held to a *fiduciary duty*. This means that you are legally obligated to act in the best interests of the ward at all times, prioritizing their financial well-being above your own. Fiduciaries are prohibited from using the ward's assets for personal gain, and any breach of fiduciary duty can lead to serious legal consequences, including removal or criminal liability.

5. Ending Guardianship

A guardianship can be terminated in a number of ways. If the ward’s condition improves and they regain the ability to manage their affairs, they can petition the court to remove the guardian and reinstate their legal rights. Additionally, if the guardian fails in their duties or if the ward passes away, the guardianship will come to an end.

6. Conclusion

Being appointed as a guardian of the property is a significant responsibility. Guardians must carefully manage and protect the assets of the ward, ensure their financial needs are met, and always act in the ward’s best interest. In Maryland, the courts hold guardians accountable to ensure that the ward’s property is handled with the utmost care, transparency, and integrity. If you are considering or have been appointed as a guardian of the property, it’s important to understand your legal obligations and the seriousness of the role you have undertaken. It is best to consult with an attorney to ensure that you are meeting your fiduciary duties and complying with the laws governing guardianship in Maryland. If you are considering filing for guardianship, or challenging or modifying an existing guardianship, the attorneys at Markham Law Firm can help.