The Guardianship Process and Avoiding a Guardianship in Maryland, Virginia, and DC

A guardianship proceeding is when an individual goes to a court to request the permission of the court to have control over another individual or their assets. This guardian process is accomplished in many different circumstances, such as for (1) an elderly parent, (2) an individual who has become incapacitated for any reason, or (3) a person is not able to make the right choices for themselves.

There are two types of guardianship that can be granted by courts in Maryland, Virginia, and Washington, DC. The first type of guardianship is a guardian over the property. This guardianship occurs when an individual is appointed as the guardian of someone’s assets. The assets can include bank accounts, retirement accounts, and real property. The second type of guardianship occurs when an individual is appointed guardian of the person. This guardianship means that the individual who is appointed as guardian will oversee making decisions about where the person lives, medical care for the person, and other issues that affect that individual, not involving financial issues.

Either of these types of guardianship proceedings can be extremely costly and time consuming because the process requires going to court, proving that guardianship should be ordered, and then the guardian must continue to report to the court. Furthermore, the individual making the request to be guardian has a very high standard of proof because Maryland, Virginia, and DC courts do not enjoy taking these rights away from any individual. However, avoiding the process of a guardianship is very simple. To avoid having to be involved in a costly guardianship request, a person can prepare two types of forms: (1) a financial power of attorney; and (2) a healthcare power of attorney.

A financial power of attorney allows a person to designate individuals who can make financial decisions on their behalf. This financial power of attorney form allows the creators to appoint someone who can assist with bank account, retirement accounts, taxes, selling and buying real property, as well as many other financial matters. Using a financial power of attorney form allows an individual to select someone with whom they are comfortable with and that they trust instead of having someone go to court and request the court appoint them as a guardian of the property for that person. Through a financial power of attorney, an individual is able to choose well in advance of any incapacity whom they want to handle their financial matters.

A healthcare power of attorney allows an individual to not only appoint individuals who can make healthcare decisions on their behalf, when they cannot make their own behalf, but the healthcare power of attorney also allows them to indicate what they would like to happen to them in certain healthcare situations, such as a vegetative state, coma with no change of recovery, or in a stage 4 terminable illness situation.  A healthcare power of attorney allows the individual to state what level of care they would want to receive.

Avoiding a guardianship by doing a financial and healthcare power of attorney can save families time and money. Furthermore, creating a financial and healthcare power of attorney allows the person who will be place within the guardianship to make decisions ahead of time as to whom shall be that individual to be caring for them.

An experienced probate and estates lawyer can advise you on the aspects of guardianship, power of attorney, and estate planning. Our estates attorneys, such as Robb Longman, have significant expertise in working with clients related to guardianship and avoiding a guardianship. The estate planning and litigation attorneys at Longman & Van Grack in Maryland, Virginia, and DC have years of experience dealing with these difficult and personal decisions. If you would like to discuss the how one of our attorneys can help you, contact us at (301) 291-5027 for a consultation in our offices in Bethesda, MD; Rockville, MD; Virginia; or Washington, DC.