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Maryland SAFE Act

ByAdam Roa

The Maryland SAFE Act

The Maryland SAFE Act is a relatively new provision to address financial exploitation of the elderly.  This provision allows certain interested parties to bring suit for the elderly individual in for various types of relief.  What makes the Maryland SAFE Act particularly useful is that it is relatively open ended in the type of relief you can get from the Court.

Types of Relief

You can ask the Court to have the wrongdoer return the asset or property.  You can ask that the asset be placed under Court supervision.  You can ask that the wrongdoer refrain from taking certain actions towards the elderly person.  You can ask that the Court to order the wrongdoer to account for their actions. 

Guardianship versus Maryland SAFE Act actions

Both guardianship and Maryland SAFE Act actions involve seeking Court intervention.   Guardianship of the Person is an all-purpose Court order. That is, it gives you virtually full discretion to make health care decisions.  The SAFE Act was not designed for such sweeping health care actions.  

But, if there is financial exploitation that is happening to an elderly person, you do have some choices.

Seeking guardianship of the property will put the assets subject to Court oversight.   The Court in that instance will pick a guardian to report the use of said funds.  However, in a SAFE Act case, the Court can also impose a Constructive Trust over the assets. The Court could also appoint a Trustee who could act with the same financial fiduciary responsibilities and powers as a guardian.   The SAFE Act can also have types of relief that do not require ongoing Court oversight. Such actions include as asking for permanent injunctive relief prohibiting a person from doing something.

Competency Gray Areas

It is very common to file for guardianship of the person and property. As such a Maryland SAFE Act matter would be, for the most part, irrelevant.  However, a problem can arise if the elderly person resists being examined. Guardianship requires two guardianship certificates. The SAFE Act does not.

The other real issue is competency gray areas.   Just because an elderly person has dementia or is otherwise cognitively impaired, does not mean that they need Court intervention.  This would be true for either guardianship or the Maryland SAFE Act.   However, the SAFE Act casts a much wider net than a guardianship matter.  First of all, it means that the level of impairment will need to be higher in a guardianship matter than in a SAFE Act case.  Secondly, more options exist in the Maryland SAFE Act matter in terms of triggering events that can lead to Court intervention.

This area of law is complex and evolving.   If you are concerned that an elderly relative is being exploited, please give our office a call.