Guardianships a support system

March 22, 2009|By DAVE McMILLION

WASHINGTON COUNTY -- One way to create a support system for an elderly person who is incapable of handling his or her affairs is by establishing a guardianship.

Guardianships, whether of a person, a person's property or both, typically are put in place for people who are not competent to handle their own affairs and had not previously set up powers of attorney, said Hagerstown attorney Catherine A. Drummond, who specializes in elder law.

In such cases, interested parties must ask the court to name someone to serve as the person's guardian, Drummond said.

To have a guardianship established in Maryland, two physicians must produce certificates declaring that the person for whom the guardianship is being sought is incapable, said John Kenney, program manager of Adult Services for the Washington County Department of Social Services.

Guardianship usually is awarded to a family member, Kenney said. If there is no relative who can act as a guardian, Susan MacDonald, executive director of the Washington County Commission on Aging, can fulfill that role for someone older than 65, Kenney said.


Locally, guardianship of a person's property is often given to an attorney, Kenney said.

Once named, a guardian has a duty to act according to the court's instructions, which are usually set during the guardianship proceeding. If the court grants guardianship over the ward's property, the guardian has a fiduciary duty to manage the ward's assets properly, according to the Maryland State Bar Association Web site at

The law requires that the guardian of the property file an annual accounting with the court detailing the financial transactions of the previous year, the Web site says. A trust clerk reviews the accounting, done on forms available from the local clerk of the court, for compliance with the court's instructions.

The guardian of a person is responsible for making health-care decisions and assuring that the ward is living in a safe environment. The guardian must file an annual report detailing the ward's status, the care plan and whether the guardianship needs any changes, the Web site says.

Maryland guardianship law allows an attorney handling the property to charge a fee, usually about 1 percent of the value of an estate, as payment for managing the estate, Kenney said.

The fees attorneys are paid to manage properties are based on state law and a judge's decision, Drummond said.

Serving as a guardian is not lucrative for lawyers, Drummond said.

In some cases, guardianships require up to $7,000 worth of legal work, but the attorney could only bill for about $2,000, she said.

If the Commission on Aging is named guardian of a person, the agency usually handles that person's personal needs, such as medical care, Drummond said.

Guardianship is not without critics.

Victims of elder abuse often are assigned guardianships in an attempt to protect their estates from further exploitation, said Elaine Renoire, one of the directors of the National Association to Stop Guardian Abuse.

Sometimes, however, guardians "eat up" an entire estate in legal and administrative fees, said Renoire, of Indiana.

Every state has laws regarding guardianship and "none of them are great," Renoire said.

Kenney said that although the scenario Renoire raised about guardian fees draining an estate of assets can happen, he has not witnessed such a situation locally.

Kenney said he considers guardianship to be a last-resort resolution, noting that he prefers to find assistance for incapable people in other ways.

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