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.
If My Sister and I both File for Guardianship for our Mother, who has Priority?
The starting point is what type of guardian do you seek. There are two types of guardians. The first is the guardian of the person. It is this person that makes medical related decisions on behalf of the disabled. The second type of guardian is the guardian of the property. This person makes strictly financials decisions on behalf of the disabled. Both types of guardians need not be assigned at the same time. The priority for each, while similar, is different.
Maryland Ann. Code Est. & Trust § 13-707 provides as follows, as it relates to the priority of eligibility of someone asking the court to be appointed as guardian of the person.
Persons are entitled to appointment as guardian of the person according to the following priorities:
(1) A person, agency, or corporation nominated by the disabled person if the disabled person was 16 years old or older when the disabled person signed the designation and, in the opinion of the court, the disabled person had sufficient mental capacity to make an intelligent choice at the time the disabled person executed the designation;
(2) A health care agent appointed by the disabled person in accordance with Title 5, Subtitle 6 of the Health-General Article;
(3) The disabled person’s spouse;
(4) The disabled person’s parents;
(5) A person, agency, or corporation nominated by the will of a deceased parent;
(6) The disabled person’s children;
(7) Adult persons who would be the disabled person’s heirs if the disabled person were dead;
(8) A person, agency, or corporation nominated by a person caring for the disabled person;
(9) Any other person, agency, or corporation considered appropriate by the court; and
(10) For adults less than 65 years old, the director of the local department of social services or, for adults 65 years old or older, the Secretary of Aging or the director of the area agency on aging, except in those cases where the department of social services has been appointed guardian of the person prior to age 65. Upon appointment as guardian, directors of local departments of social services, directors of area agencies on aging, and the Secretary of Aging may delegate responsibilities of guardianship to staff persons whose names and positions have been registered with the court.
So, if a son and daughter both wanted to become guardian of the person for their mother and the daughter was a health care agent of the mother in accordance with Title 5, Subtitle 6 of the Health-General Article, she would have priority of appointment over her brother who was not a health care agent. However, please note that this is only a starting point. If the son could “show cause” why the court should over look this priority, the court may overlook this statutory priority and pick the son, even though he was not the named health care agent.
The analysis for priority of appointment for guardian of the property is different. Maryland Ann. Code § 13-207 provides, in part:
(a) Persons are entitled to appointment as guardian (of the property) for a minor or disabled person according to the following priorities:
(1) A conservator, committee, guardian of property, or other like fiduciary appointed by any appropriate court of any foreign jurisdiction in which the minor or disabled person resides;
(2) A person or corporation nominated by the minor or disabled person if the designation was signed by the minor or disabled person after his 16th birthday, and, in the opinion of the court, he had sufficient mental capacity to make an intelligent choice at the time he executed the designation;
(3) His spouse;
(4) His parents;
(5) A person or corporation nominated by the will of a deceased parent;
(6) His children;
(7) The persons who would be his heirs if he were dead;
(8) A person or corporation nominated by a person who, or institution, organization, or public agency which, is caring for him;
(9) A person or corporation nominated by a governmental agency which is paying benefits to him; and
(10) Any other person considered appropriate by the court.
Please note that section 10 of this section allows the court to appoint “any other person considered appropriate.” So, if all of the interested parties (i.e. children, etc.) are deemed undesirable (for whatever reason), the court could well assign an attorney, not affiliated with any of the interested person, to serve as guardian of the property.
The above listed information is but a snap shot of some of the issues relating to priority. Often, the determination of guardianship is both document driven and fact driven.