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On March 18th, the MSBA Estate and Trust Section Study Group held a Zoom meeting outlining the basics of Adult Guardianship. The moderator was Richard Adams, Co-Chair of the Study Group. The panelists were Cheryl A. Jones, Esq. and Aidan F. Smith, Esq., both of Pessin Katz Law, P.A.

Ms. Jones and Mr. Smith began with the basics: a guardianship is a court proceeding to appoint someone to care for an alleged disabled person. There are two kinds of guardianships: guardianship of the person and guardianship of property. Sometimes both will be petitioned for at the same time. A petition for guardianship is always an adversarial proceeding because in guardianship someone’s rights are being taken away. This area of the law is very much spelled out by statute, and the legislature provides detailed forms for practitioners.

Guardianship of the person is needed when a person lacks sufficient understanding or capacity to make or communicate responsible decisions regarding their person. This includes decisions about healthcare, food, and shelter because of any mental disability, disease or substance abuse or addiction. The need for guardianship of the person must be proven by clear and convincing evidence, and it is the burden of the petitioner to show that a less restrictive form of intervention is not available. 

Guardianship of the property is needed when a person is unable to manage their property and affairs effectively because of a physical or mental disability, habitual substance abuse or addiction, imprisonment, compulsory hospitalization, detention by a foreign power, or disappearance. The need for guardianship must be shown by a preponderance of the evidence.

Ms. Jones recommends a guardianship be sought when an individual needs medical care or has property to manage but cannot make his or her own responsible decisions. Instances where this would be the case are when there is dementia or similar conditions resulting in diminished capacity or with regard to adult children with disabilities. In the case of adult children, guardianship must be sought prior to that young person turning 18. Other instances where guardianship should be sought include where there are dueling powers of attorney, for example, in sibling disputes, where an agent is acting in bad faith, Medicaid planning or a spend-down must be undertaken, or there is the need to override someone who is manipulating or exploiting an individual with diminished capacity.

Ms. Jones and Mr. Smith emphasized the importance of following the proper procedures and using the proper forms. They outlined these procedures in a six-step process. First, counsel must identify the proper court in which to file the petition. The petition must include certificates from two healthcare professionals. The details of the contents of the petition are all laid out in the statutes. Ms. Jones likens the petition to telling the court the story of why this person needs guardianship. 

Second, the court appoints an attorney to represent the alleged disabled person. Third, the court issues a Show Cause order which will provide a date by which the alleged disabled person and all interested parties should file a response as to why a guardian should not be appointed.