Guardianships are a comprehensive and intrusive remedy reserved for those who can make no decisions for themselves. Concerned individuals, including friends and family members, can seek the appointment of a guardian by a court. Guardianships can be sought only where an individual does not have sufficient mental competency or capacity to take care of themselves.
A court makes such a determination, and the standard for that determination is not always clear. Maryland law requires that two physicians, or one physician and a licensed psychologist or social worker, must certify that a person cannot make or communicate reasonable decisions regarding their personal well-being. But because guardianships often include the ability to make health care decisions, the guardianship process requires careful consideration by all parties involved.
A conservatorship is a less intrusive version of a guardianship focused on finances. Therefore, a conservator has a fiduciary relationship toward the person they are appointed to assist. This means that the conservator is the agent of the individual and must act with care and responsibility toward the individual’s best interest.
Conservators must file an initial inventory with the court, followed by annual accountings of the individual’s property and expenditures. In this way, the court can ensure that the conservator is fulfilling their role as a fiduciary.
Even when a person is comatose or unable to communicate finding incompetency or incapacity is a process with many strong emotions often attached to it. The issue gets far more complicated with individuals who believe they should have independence and are struggling with mental illness, a debilitating disease, or injury.
Simply because someone has a mental illness or a debilitating injury does not mean they lack mental capacity to decide for themselves. Many people can lead relatively normal lives and handle their own finances. Similarly, some people may appear relatively healthy and mentally functional in many respects but cannot handle certain aspects of their lives.
There are many ways to define competency and many ways to test for competency. Guardianships and conservatorships are not one-size fits all solutions. For instance, some people cannot decide for the rest of their lives, but others may improve their mental and physical capabilities with time and therapy – rendering an established guardianship in need of amending, or unnecessary.
Some individuals may need assistance managing their money as part of a conservatorship, but others may also need assistance in investing that money and deciding medical care providers. Whatever the case, every person in need is different. Every client is different, and every situation is difficult for everyone involved. That is why our firm does not use “forms” and we treat every client as an individual on every matter.
Yes, you can act as a guardian or conservator for your loved one. However, simply because you bring your loved one’s needs before a court does not guarantee that 1) the court will find a lack of capacity, or 2) even if a court does, that you will be appointed guardian or conservator. Family dynamics are often complicated, especially when someone in the family has a debilitating illness or injury.
While family members can be appointed as guardians or conservators, the court will take in the many considerations and try to do what is best for the person in need. Often, the court will find it appropriate to appoint an attorney, or even a representative from a local government mental health or social services agency, to act as a guardian or conservator. Government agencies will sometimes request guardianships or conservatorships if they have pre-existing familiarity with the individual in need. Whatever the situation, we understand the process and will advocate for you.
When your loved one needs more than just a helping hand, it is a serious matter full of legal complexities. Avail yourself of the law and your options by contacting an understanding and knowledgeable attorney. With decades of experience and exceptional personal attention to every client, we are here to help. We have convenient office locations in Columbia, Rockville, D.C., McLean, and Tysons Corner. Contact us by email at firstname.lastname@example.org or phone 301-299-0488.