The Advocate

Fall 2011

Home | | Next Page

Guardianships and the Personal Injury Case

by Craig L. Zissel


You are sitting in your office and you receive a frantic call from former clients. Their 20 year-old daughter was just involved in an automobile accident and is in the ICU at an area hospital in a coma.  Her parents want to hire you to file a lawsuit on her behalf against the other driver, and ask you what needs to be done so you can move forward on the case.  Under Maryland law, a parent or guardian is able to make medical decisions for an adult child, as an adult child falls within the class of individuals outlined in Md. Code Ann., Health-Gen I § 5-605.1  However, parents cannot institute legal proceedings or make decisions regarding their adult child’s property without being appointed as Guardian of the Property over their child, or their child’s power of attorney. 

Instituting a personal injury case may first require initiation of guardianship proceedings if the injured person is deemed temporarily or permanently disabled due to an accident, or when a case involves a minor child and the amount of the settlement is more than five thousand dollars ($5,000.00).2  For a parent, relative, or friend to be appointed guardian over an injured person, that potential guardian must petition the court to find that the injured person is unable to manage his or her affairs or make decisions due to a disability.  The person seeking to be appointed, known as the “petitioner” is asking the court to be appointed to control the disabled person’s personal or financial affairs.  A Guardian of the Person may be appointed pursuant to § 13-705 of the Estates and Trusts Article of the Maryland Code, and a Guardian of the Property may be appointed pursuant to § 13-702.3  Guardianship proceedings are deemed adversarial under § 13-101 of the Estates and Trusts Article of the Maryland Code and Title 10 of the Maryland Rules.  Under the statue, the alleged disabled person has many due process rights, including the right to counsel, the right to notice, the right to a hearing, the right to cross examine witnesses, and the right to trial by jury.  The Circuit Court has jurisdiction over guardianship proceedings and venue is determined by where the alleged disabled person is domiciled. 

In this situation, you would file a Petition for Guardian of the Person and Property of the alleged disabled child, seeking to have one or both parents appointed as guardian.  Maryland Rules 10-201 and 10-301 outline the requirements for the Petition.  Generally, a Petition includes biographical information for the petitioner and alleged disabled child, a brief factual history and description of the alleged disability, and the reason for guardianship.  Once the Petition and accompanying documents are filed with the court, the court will appoint an attorney to represent the disabled person or minor, and issue a summons and show cause order to be served upon them.  The matter is then scheduled for a hearing, which, if uncontested, will last approximately fifteen minutes. 

Following the hearing, the judge will issue an Order appointing the petitioner(s) Guardian of the Person, Property, or both.  This order permits the Guardian to enter into legal contracts, perform banking tasks, file lawsuits, and sign releases and HIPAA authorizations, among other things.  This same order further allows the Guardian to make decisions regarding the person’s medical care, residence, and other matters. 

Both a Guardian of the Property and a Guardian of the Person are required to file an annual report with the court each year.4  This report is due sixty days from the end of the calendar year.  A Guardian of the Property also must file an initial inventory which outlines for the court the contents of the minor or disabled person’s estate at the time the guardianship begins.5  The annual report is then reviewed by the trust clerk to make sure all funds are being used appropriately. 

On average, a guardianship filed with the court takes 60 to 90 days to be heard and granted.  The speed at which the matter moves through the courts is somewhat dependent on the availability of the court, but can be affected by how quickly the attorney for the petitioner can effect service on the disabled and all interested persons.  Under limited circumstances, some situations may require the court to take immediate action to protect an alleged disabled person or someone else from the alleged disabled person.  In such cases, Maryland law allows for the emergency appointment of a Temporary Guardian of the Person to ensure timely, adequate protection.6  This appointment is temporary, and can be converted to a permanent guardianship following the normal process.  Courts rarely, if ever, handle petitions for Guardian of the Property on an emergency basis. 

When consulting with a personal injury client, it is important to explain the potential need for filing a petition for guardianship.  I recommend filing the petition as early as possible, due to the fact that in many situations a family member cannot formally retain you to represent an adult disabled absent a guardianship.  A guardianship petition can always be withdrawn should the alleged disabled person pass away or sufficiently recover from their injuries to make their own decisions. 

Craig L. Zissel is an associate with Silverman, Thompson, Slutkin & White, and can be reached at (410) 385-6251 or czissel@mdattorney.com

1 Md. Code Ann., Health-Gen I § 5-605 states: The group of individuals includes a (i) a guardian; (ii) the patient’s spouse; (iii) an adult child of the patient; (iv) a parent of the patient; (v) an adult brother or sister of the patient; (vi) a friend or relative of the patient who meets the requirements of paragraph (3) of this subsection. 

2 Even though a parent or guardian is able to institute lawsuits and enter into contracts on behalf of a minor child, Maryland law requires that any settlement proceeds that exceed five thousand dollars be placed in a trust account for the child until he or she turns eighteen.  A parent can petition to be appointed guardian of a child’s property should they need to use the funds for the care of the child or for the child’s benefit before the child turns eighteen.  Once appointed, a parent acting as Guardian of the Property of his or her minor child is held to the same fiduciary duties and standards as the Guardian of the Property of a disabled adult. 

3 Md. Code Ann., Est. & Trusts § 13-702 deals with the appointment of a guardian for a minor while § 13-705 deals with the appointment of a guardian for a disabled adult. 

4 Md. Rule 10-706 and 10-206. 

5 Md. Rule 10-707(a). 

6 Md. Code Ann., Est. & Trusts §13-709.

 


  • Operation Welcome Home
    Wednesday, August 27, 2014 | 6:00 pm
    Co-sponsored by the MSBA Public Awareness Committee
    International Terminal (Pier E) at BWI Airport
    Flyer
  • Wills for Heros
    Saturday, September 6, 2014
    Training 9:00 am - 11:00 am
    Appointments 11:00 am - 5:00 pm

    Frederick County Division of Fire and Rescue Services
    Public Safety Training Facility, 5370 Public Safety Place, Frederick, MD 21704
    Contact Sarah Cline (301-945-9245) to volunteer or with questions
  • View all upcoming events >>
  • One Bar | One Community Public Service Project schedules and organizes at least one monthly public service event to benefit residents of Maryland.
  • Ten Minute Mentor. An online collection of video presentations from young leading lawyers in their areas of expertise.
  • Wills for Heroes. The YLS is an affiliate of the Wills for Heroes Foundation and proudly organizes volunteers for Wills for Heroes events...
  • View All Projects >>