Category Archives: Guardianship

Guardianship Issues – Physician Certificates – Part 2

What happens if a person needs a guardian and the disabled refuses to be examined for guardianship purposes? If there is a person in the household that refuses to allow that person to be examined, then there is a clear legal route for the court to be involved. But what happens if your parent is in the home alone and simply refuses to be examined? Now what?

Maryland Guardianship Complication

Maryland law on this precise issue is a bit more complicated. As strange as it seems, the law is very clear that if a person is preventing someone from being examined then there is a clear path for a hearing. But, it is not so clear if there is no one preventing them from being examined.

Argument that Case Should be Dismissed

When a guardianship petition is filed, the court will appoint an attorney to represent the disabled. In cases where there is no one preventing her from being examined, it is not unusual that the court appointed attorney will argue that the case should be dismissed as Maryland law does not provide that the court can force a person to be examined if no one is preventing her from being examined. It is an absurd argument, but if you take a literal reading of the Maryland provisions you could see their point.

A Winning Argument

But, you must take an aggressive approach and take an expansive review of all relevant guardianship rules to make the argument that the court has the right, even thought the disabled does not have someone that is preventing her from being examined, to order they be examined. This argument must be made to look past the perceived limitations in the Maryland rules. We have taken this expansive view before and won on this issue.

The point is that Maryland law is not as clear as it needs to be on certain issues. It also means that guardianship matters may be more complicated that originally believed and you need competent counsel to navigate through these complicated issues.

Guardianship Issues – Physician Certificates – Part 1

The guardianship process is a complex process with many moving parts. The very first step, however, can often be the most challenging. When a petition for guardianship is filed, you must file with it, proof of the person’s disability. This is a certificate completed by the disabled’s physician, psychiatrist, psychologist, nurse practitioner, or licensed social worker (or a combination thereof). But, what happens when the disabled does not want to be examined for guardianship purposes? This is when it can lead to some complications.

Addressing a Complication

There may be several reasons why the disabled does not want to be examined. The first is that there is a person in the household who does not want the disabled to be examined. That could be the spouse of the disabled. Or, this could be another family member or caretaker who, for various reasons, may not want the disabled examined. These reasons could range from not acknowledging that the person is disabled to elder exploitation that the other member of the house wants to keep secret the extent of the person’s disability as to expose that disability may threaten their ability to get money from the disabled.

Person in the Household Refuses to Allow the Disabled to be Examined

If there is a person in the household that refuses to allow the disabled to be examined and there is a reason to believe the disabled may be at risk unless a guardian is a appointed, then the guardianship petitioner may ask the court for a hearing to force the disabled to be examined. This means that instead of the normal one hearing requirement, that there will be at least a two-hearing requirement. At this hearing, you will need to prove there has been a refusal for examination and prove the person may be at risk unless a guardian is appointed. If the court grants your request, they will then have the disabled examined by two physicians. If both physicians agree that the person is indeed disabled, then the case proceeds to the next hearing regarding who is to be appointed guardian.

But, what happens if there is no one else in the house and therefore the only person refusing is the disabled person herself? Stay tuned for the next blog entry.

Free Britney Spears: Disturbing Issues About Adult Guardianship

The Britney Spears conservatorship raises a number of interesting issues (that are somewhat complex and disturbing) of how an adult could be subject to guardianship.

The obvious issue is how the state can take away your rights to make health care and financial decisions, when, from the outside, you appear to be within the range of what we consider “normal.” It can give people pause that if it can happen to Britney, it could happen to anyone.

Adult Guardianship in Maryland

The Britney Spears conservatorship occurred in California, but since I am an elder law attorney based in Maryland, my comments stem from the guardianship process in this state.

To successfully file a petition for guardianship in Maryland, you need to submit two physician certificates to the Circuit Court. The certificates need to show that the person who is “allegedly disabled” no longer has the ability to make responsible decisions, due to a mental disability, disease, habitual drunkenness, or drug addiction.

Guardianship for Adults with Mental Disabilities

In Maryland, the majority of guardianship cases are for mental disability, usually dementia. While forgetfulness is an obvious symptom of dementia, the underlying issue is more devastating—an impaired ability to reason. Therefore, the imposition of a guardianship based on mental disability is usually permanent. However, if the mental disability is linked to a single episode (i.e., a mental breakdown), then the guardianship may either be framed as temporary or permanent until proven otherwise.

However, there is a grey area. In the case that someone has an episode that gives rise to their guardianship, but then they recover, there is no obvious way for them to lift the guardianship. The issue is that most individuals, even if they do recover from the disability, may be in a weakened condition and/or have no practical ability to seek to lift the guardianship.

What can make this more complex is if the guardianship ward believes they do not need a guardian (but they really do need one). This is not an uncommon issue for dementia-driven guardianships. Unfortunately, people with dementia may not recognize for themselves the extent of the disease that impairs their ability to reason.

What makes this even more complex is if the person can still communicate in a socially acceptable way, dress appropriately, and then mask their disability through short but appropriate answers or through humor. To an untrained eye, the short and otherwise socially appropriate behavior may be a sufficient mask to give an appearance that they are “fine enough” to make decisions.

Do They Have the Ability to Reason?

At the root of this guardianship issue is someone’s ability to reason. If this indeed is impaired, then the person’s decision-making process becomes muddled and irrational. This can lead to inactions or foolish decisions, which an otherwise healthy individual would have naturally avoided.

In Maryland, you are free to make decisions regarding your health and finances (i.e., you are free to make foolish decisions). But if you are impaired, then you cannot distinguish between foolish and proper decisions. This issue can be even more complex if loved ones don’t want to see the disabled person’s limitations or shortcomings.

How Much Assistance Do They Need?

What if someone still needs assistance to make decisions, but they don’t meet the criteria for guardianship? In that case, it would be wise for their loved ones to help them with an advance directive, a financial power of attorney, and a trust to guide them.

In Maryland, the imposition of a court-ordered trust can be an equitable remedy for an individual that does not meet the guardianship standard but still has a need for assistance. This could be put in place when an individual has substantial assets and may be susceptible to inappropriate influence from others regarding decisions about those assets.

This arrangement would allow someone to serve as a barrier from those that seek to manipulatively influence the individual. Typically, the trust would not hold all the assets, but certainly most of them. This financial arrangement would also not limit the individual from making independent health-related decisions.

What Will Happen for Britney Spears?

For Britney Spears, it appears that an episode caused the imposition of the state to take her health care and financial decisions away from her. If this situation were to happen for someone in Maryland, then they could use another physician’s examination and testimony to recover from the imposition of the state-ordered guardianship.

It will be interesting to see in the months ahead what the ultimate result will be for Britney Spears.

The Scary Truth Behind Netflix’s “I Care a Lot”

I Care a Lot is a recently released Netflix film that follows the fictional account of a nursing home administrator who systematically exploits the elderly for financial gain. There are dramatic scenes of Marla Grayson (the nursing home administrator) with her wall of mugshots of her elderly residents. It shows a dramatic insensitivity that the residents are nothing more than cash cows to the nursing home system.

More chilling is the twisted use of the court process to declare these individuals as incapacitated, as a way to strip them of their rights to make decisions on their own. In essence, they become victims of a system that is supposed to protect them, robbing them of all decision-making power and their assets.

How Real Is Elder Abuse?

Can this happen in real life? The unfortunate answer is, “Yes”.

While the wall of elderly mugshots and a corrupt physician may be overly dramatic, there is an uncomfortable reality of nursing homes denying their residents basic rights and abusing the court guardianship system and the medical assistance process in order to get paid.

According to the National Council on Aging, up to five million older Americans are abused every year, and the annual loss by victims of financial abuse is estimated to be at least $36.5 billion.

Certainly, there are many well-run and well-meaning nursing homes, but there are also some nursing homes that are neither. For these nursing homes, their operating process is to cut off the resident’s family, deny them access, or grant access to only those who will align with their goal of keeping the resident at the nursing home and facilitate the nursing home’s wish to be paid.

How Can This Kind of Elder Abuse Happen?

A little background explanation is in order here. Let’s look at the typical process that an older adult might go through to end up at a nursing home.

For example, if your mom is over 65 years of age and has more than a 3-night stay at an area hospital, then she will generally be eligible to receive Medicare benefits. These benefits will pay for her hospital stay and then her nursing home rehabilitation stay—for the first 20 days in full, and then typically up to 100 days, with a co-pay expected from days 21–100. (A 100-day period is not guaranteed though.)

The key here is that the decision to move your mom from the hospital to the nursing home for rehabilitation would be made quickly. It is often the discharge planner at the hospital who makes the recommendation for rehabilitation at an area nursing home of their choice. As such, this is a guaranteed, temporary payment source for area nursing homes.

So, let’s say that your mom goes to nursing home rehabilitation for the 100 days that are covered by Medicare. Then, it’s time for your family to meet and make a big decision. What’s next? Should mom come back home, go to an assisted living facility, or stay at a nursing home?

The Nightmare Nursing Home Situation

At this point, a problem could arise between the nursing home and your family. What if your family and your mom’s health care agent want to take her home, but the nursing home recommends that she stay there? That is when the nightmare could begin.

If the nursing home wants to keep your mom, then they might say something like, “Your mother is better off staying here. She gets agitated when your family talks about taking her home.” Thus, the nursing home views your family as “agitators” who are upsetting their resident. Of course, this ignores the fact that your mom might want to come home, and she becomes complacent only when she is not reminded of the option to come home (i.e., she gives up).

Then the nursing home will demand payment. If your mom’s power of attorney holder does not use your mom’s money to pay the nursing home, then the nursing home will file for guardianship. This will strip your right, as your mother’s child, to be her agent.

The nursing home will have the court appoint a random attorney to control your mom’s money, and they will appoint the local Department of Social Services to make health care decisions for your mom. The goal of the random attorney will be to sell all of your mom’s assets and apply for medical assistance (i.e., Medicaid) to continue to pay for her nursing home stay. The goal of the Department of Social Services representative will be to just keep your mom at the nursing home where “she is safe.”

It is not unheard of that the nursing home will cut off access to your mom’s medical information or cut off your contact with mom all together. This issue has become even more pronounced during COVID-19.

It is not unheard of that the nursing home, when it files for guardianship, “conveniently”:

does not list you and your family members as interested persons
fails to mention that your mom has a power of attorney holder or health care agent (when they know of both)
tells you not to worry about your mom’s guardianship hearing and that you don’t have to attend
blindly files your mom’s medical assistance applications without knowing her assets, in order to have Medicaid pay the nursing home. (Please keep in mind that the medical assistance reimbursement, while it is not as high as the private pay rate, is substantial.)

The nursing home will often characterize this new guardianship filing as an “emergency” guardianship filing, not because there is any emergency with your mom, but because they want to get paid as soon as possible. The nursing home does not want a non-payment situation that could result in your mom’s discharge. (Although, from your family’s perspective, a non-payment situation leading to discharge would be just fine, if you wanted to take your mother home anyways.)

Adult Guardianship Issues in Maryland

In order to have a successful filing for a guardianship petition, in Maryland you need two physician certificates to prove that your mom is unable to make financial or health care decisions on her own.

Here are some questions about guardianship that you might have, along with my responses:

Is it possible that there could be corrupt physicians gaming the system to fraudulently declare your mom as incapacitated, as shown in I Care a Lot? That I have not seen.
Is there a lot of grey area when it comes to meeting the guardianship standard? Yes.
Are there cases when such a certificate is completed by a physician in 5 minutes, based solely on the first certificate? Yes.
Have there been circumstances of a physician completing certificates for guardianship in full, before even meeting the individuals or never meeting them? Yes (but that is rare, from my point of view).

The more common issue is not whether your mom needs help or not, but whose decision is that to make and what right does the nursing home have to make that decision.

Local Elder Law Firm Expertise

I’ve been in practice for over 19 years, and I don’t think there has been a single incident of a parent saying that they want to go to a nursing home. Nursing home placements are contemplated as a last resort when nothing else works.

The issue in many cases is that the nursing home becomes a third party in a battle over where mom is going to reside in her final days. Oftentimes, mom’s voice becomes irrelevant. But make no mistake, at the heart of this process, the nursing home’s concern is how it’s going to be paid.

The nursing home will frame the context to say that mom is “safer” there than at home. This argument will be used by the nursing home to convince the court that she should continue to stay there. The nursing home will have access to her medical records and the financial resources to hire a physician to articulate this position.

At our elder law firm, we are often involved in fighting these decisions. That means that we fight to get access to your mom’s medical records (which may lead to a separate battle of their release) and fight to maintain your right to make decisions for mom.

If the court appoints a random attorney as guardian of the property, as stated before, their sole role is to sell mom’s assets. If there are jointly held assets, an attempt will be made to sell them. If there are gifts of assets or transfers within the last 5 years, they will come under scrutiny, and depending on if there are assets to fund this random attorney in litigation, there will be an effort to have these gifts undone or otherwise transferred back.

The next thing you know, you are being cast as the “bad guy” for not returning these gifts, and now litigation begins with your mother’s guardian of the property and you to get these assets back. The reason why the guardian of the property may go after these transfers is that these transfers may be barriers for the nursing home to be paid by Medicaid. Gifts within 5 years are penalized transfers and will be barriers for the nursing home to be paid. As such, they will likely be pursued.

At the heart of these transactions is the court process, which will be used to try to keep mom at the nursing home, sell all of her assets, have strangers appointed as her guardian, and have this third-party attorney go after you, if you are involved in transactions that prevent the nursing home from being paid.

This is not the storyline of I Care a Lot. But the core issue of the nursing home being paid and abusing the judicial system to meet their needs is very real. And the nightmare, while not as dramatic as the plot of I Care a Lot … is very real.

We Care a Lot

At the Law Office of Adam J. Roa, we understand how scary and overwhelming these issues can feel for your family. As an experienced elder law firm in Maryland, we are here to guide you and fight for you. Please call us for a consultation at (410) 296-8166 x292.

COVID-19 Guardianship

If your parent or loved one needs someone to make decisions for them, then they will need to have a court-appointed guardian. The main issue for establishing guardianships during the COVID-19 pandemic is the issue of timing.

In Maryland, the normal, non-emergency adult guardianship process is started by filing a petition. After that, it would typically take 6–8 weeks before a hearing would be held to determine who the court was going to appoint as guardian. That has changed under COVID-19 rules.

Maryland Court Guardianship Hearings

After reopening the circuit courts in June 2020, the circuit courts, as of December 2020, entered modified court openings. Each county will have its own unique policy on in-person vs. remote hearing rules. However, the general rule, as of now, is that uncontested guardianship will continue to be remotely held for the foreseeable future. For contested guardianships, this is on a case by case basis. If there is a strong inclination for in-person or remote hearing for a contested matter, this request should be made expressly to the court. The other developing matter is the time between when a petition for guardianship is filed and perfected and the eventual hearing date. That is a continuing to be fluid issue that is impacted by the court closings and the regular rescheduling of court cases.

How to Push Your Guardianship Case Forward During COVID-19

For uncontested matters or matters of limited scope, the best path to proceed is to have all the attorneys in your particular guardianship case cooperate to push for a video hearing. The court is likely going to be more receptive to video hearings if all interested parties are represented by counsel.

Contested Guardianships

The situation is more complicated, however, if the guardianship case is contested—meaning at least two individuals are fighting over who should be appointed as guardian. As long as the alleged disabled person is in a safe environment, then getting a court date in the near future for contested guardianship will be problematic.

Here are some other options you can explore:

Mediations, which can occur remotely, are encouraged. They can be a way to resolve a contested guardianship matter much sooner than having a court rule in a contested matter that may not be set for many months.
What also could be explored is having the interested parties consent to the temporary appointment of a guardian. A key part of this discussion should include agreeing that the temporary guardian is not only limited in time but also has very limited powers. This may be a creative way to address the very urgent decisions now while delaying more complex issues for a court date many months from now.

We’re Here to Help During COVID-19

We understand that these are uncertain times. Now, more than ever, is when your loved ones need you to be their advocate in planning for the future.

As an experienced elder law firm in Maryland, we’re happy to guide you through your guardianship case. Please call us at (410) 296-8166 x292.

Filing a Petition for Adult Guardianship in Maryland

One of the first steps in the Maryland adult guardianship process is filing a petition with a circuit court. If you’re preparing to file a petition for guardianship, you might have some questions.

Am I eligible to petition for guardianship?

According to the law, you must be an interested person to petition for guardianship. An interested person may include:

Someone nominated by the disabled person when they had sufficient mental capacity
The disabled person’s immediate family members (spouse, parents, adult siblings, children or other lawful heirs)
Health care agent or other government agencies

Where do I file the petition?

You need to file the petition with the circuit court in the county (or Baltimore City) where the disabled person lives (or, in some cases, where the person is hospitalized or where their property is located). The court will ask you to pay a filing fee.

Are guardianships of person and property filed in the same petition?

Usually they are, but they do not have to be.

What documentation do I need to file the petition?

Your petition must prove that the disabled person is unable to make responsible decisions and needs a guardian of the person or property. The petition’s content includes:

A description of the disability
The disability’s effect on the person’s ability to function
The reason a guardian should be appointed
Alternatives to guardianship that have been attempted and failed
Information regarding previously appointed guardians
A list of the disabled person’s assets
The disabled person’s attorney or a request for a court appointed attorney
Two certificates of disability from licensed health care professionals who have examined the person

File a Guardianship Petition with Less Stress

A petition that is incorrect or incomplete might cause your case to be delayed or dismissed. If you have questions regarding how to file a petition, then give us a call. Whether or not you have a lawyer, the court will require you to follow the same laws. We can advise you how to prepare a sound petition and how to navigate the various legal requirements of adult guardianship.

Maryland Adult Guardianship Process

If someone’s health condition prevents them from making decisions regarding their medical care and finances, they may need a court appointed adult guardian.

How to Become an Adult Guardian in Maryland

We routinely provide advice regarding the guardianship rules and processes. Here is an overview on how to become an adult guardian in Maryland.

Decide on guardianship type
As a petitioner, you need to determine if you are seeking to become guardian of the person, guardian of the property, or both.

File a petition
The petition needs to include two certificates that prove the alleged disabled person lacks the ability to make rational decisions regarding health or finances.

Appoint the attorney
If the disabled person doesn’t already have representation, then the court will appoint an attorney to act as their advocate.

Inform all interested persons
There is a deadline (usually 20 days) for all interested persons (including immediate family members) to voice any opposition regarding the initial petition.

Settle a contested guardianship
This step occurs only if there is any opposition or issues regarding who should be appointed as guardian.

Appoint the guardian
In a contested guardianship, the court will rank the contestants by legal standards and determine the guardian. If there is no opposition, the guardianship is considered uncontested.

Attend training
The guardian must attend mandatory training to learn their roles, duties, and responsibilities. Some courts offer classes, and some courts allow you to take the training online.

File an inventory
The guardian must file an inventory, detailing all of the disabled person’s assets.

Submit annual reports
On the anniversary of the date the court assumed jurisdiction over the person, the guardian must submit a yearly report. The court reviews the report and either accepts it and continues the guardianship or takes other appropriate action.

A Maryland Guardianship Attorney Can Help

We can guide you through the whole process of becoming an adult guardian, including filing the petition, representing you through the court hearings, and preparing the inventory of assets. The process to arrange an adult guardian can be complicated, but we are here to help.

Guardianship

Guardianship Certificates

One of the key items in a guardianship process are the certifications needed to prove to the court that a person lacks the ability to make rational decisions regarding her health or finances. In many cases it may be possible to work with a parent to have them examined by two physicians and the parent is cooperative in the process.

But, what happens if the parent is not cooperative? Or, to make it a little more complex, what if your sibling is keeping your parent at their house and refuses to make them available for an examination? Then, your next step is to file a guardianship petition and explain why the two required certificates are not present. The court’s next step would be to set a hearing for both the parent and the sibling (in my example) to show cause (in person) at the court why the parent should or should not be examined.

This is a tricky process that should be guided by an elder law attorney. Of particular importance is to try to guard against the sister (in my example) from getting an innocent physician with no experience with the parent to write a one page letter stating that “mom is competent.” It is important to guard and act against such tactics in order to prevent the guardianship process from inappropriately stopping.

That is why it is critical that why an elder law attorney should be immediately contacted (hopefully before the litigation starts). It is our job to walk the client through the guardianship process and if contested, to walk them through the contested process and what to expect.

Elder Exploitation

Our firm was recently successful in helping a family recover funds for an elderly mother and her adult disabled son who was subject to guardianship. The person of interest was a neighbor who posed as an accountant to prepare the elder mother’s and her disabled son’s tax returns. Unknown to our client was that this this individual opened numerous accounts and credit cards and misappropriated over $100,000 worth of their assets. Our firm was successful in obtaining the return of those assets. We recently were informed by the family that the perpetrator was successfully prosecuted and is now serving a significant jail time for her actions in taking funds from our client and her disabled son.

Two Guardians?

Can We Have Two Guardians Serve at the Same Time?

The answer to this is easy: yes. However, the more interesting question is should you have two individuals serve as guardians at the same time. Remember, that as co-guardians each of you would have to agree on every decision. If you didn’t agree each of you would have to petition the court for resolution. That is time consuming and expensive. My general advice for guardianship is to have only one person appointed at a a time. If that person can no longer serve, then this person should submit a resignation with a petition from the new proposed guardian with, ideally, the written consent of the previous guardian.