There are times when a loved one becomes incapacitated or incapable of managing his or her own affairs. Ideally, prior to the emergency situation, the person will have executed power of attorney documents authorizing a trusted agent to step in. Unfortunately, these documents are not always in place or current. When faced with this situation, what do you do? How do you get the authority you need to step in and manage the loved one’s financial and medical affairs?
The court will need to appoint a temporary guardian. Typically, a hearing is required where the petitioner can show the court by clear and convincing evidence that the individual is in need of a guardian. The court will appoint a guardian if the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his or her person. This is typically due to a physical or mental illness, habitual drunkenness or drug addiction. All other less restrictive alternatives will be considered prior to appointing a guardian. If the route of appointing a guardian is taken by the court, only the powers necessary to provide for the demonstrated need of the individual will be granted. The guardian typically receives the power to consent for medical treatment or withdraw medical treatment.
When there is an emergency situation and it can be shown that an individual is living in conditions presenting a substantial risk of death or immediate and serious physical harm to himself or others and lacks capacity to make responsible decisions, the court may issue a temporary guardianship of the person. The temporary order expires 144 hours after it is issued (unless the court extends it).
To petition for temporary guardianship, the petitioner must provide notice, in writing, at least 24 hours prior to the hearing to (1) the person in need of emergency protective services; (2) the person with whom that person resides; (3) the attorney for the person; (4) the director of the local department of social services; and (5) any other interested persons as directed by the court.
The person alleged to be in need of emergency protective services is entitled to be present at the hearing, has a right to legal counsel and may present evidence and cross-examine witnesses.
If you have a loved one showing signs of incapacity and an inability to make responsible decisions, contact the estate planning attorneys at Stouffer Legal in the Greater Baltimore area for assistance in determining whether petitioning for guardianship or temporary guardianship will be beneficial. As you can see it is best to prevent the need for guardianship petitions by taking a proactive approach to estate planning and having power of attorney documents in place. Contact us to get started. You can schedule an appointment by calling us at (443) 470-3599 or emailing us at office@stoufferlegal.com
