ADULT GUARDIANSHIP LAW AND PROCESS
• A guardian of the property handles financial affairs such as paying bills, collecting income, filing taxes, and applying for benefits or services. The guardianship court process that involves several steps and strict requirements. These requirements may seem burdensome but remember, guardianship results in the deprivation of a person’s fundamental civil rights and liberties. This cannot be taken lightly. How long the process takes will depends on the court and patient’s unique facts and circumstances.
If you determine that there are no less restrictive options available to meet a patient’s demonstrated needs, guardianship may be necessary. Guardianship is a process in which a court appoints someone (a guardian) to make personal or financial decisions on behalf of an adult who is unable to because of disease or disability. The court can appoint a guardian of the person, a guardian of the property, or both. • A guardian of the person makes non-financial decisions for things like housing, medical care, clothing, food, education, and everyday needs.
Party The Petitioner
Role The person or organization that files the paperwork (the petition) requesting the appointment of a guardian of the person or property. The petitioner’s job is to prove to the court that 1) there is a legal reason (ground) to appoint a guardian, and 2) that there are no less restrictive alternatives available. A lawyer can file for guardianship on behalf of the petitioner, or someone can file pro se, meaning without a lawyer. There are forms available at www.mdcourts.gov/guardianship . The person for whom guardianship is sought. This person is also called the “respondent.” The word “alleged” is key because there is a presumption that the person has a capacity until proven otherwise. If the court appoints a guardian for the ADP, they will then be referred to as the “disabled person.” If the ADP does not have a lawyer of their own choosing, the court will appoint one to represent them. These lawyers are sometimes referred to as the ADP’s “court-appointed attorney” or “court-appointed counsel.” Their role is analogous to that of a criminal defense attorney. Their job is to advocate for the wishes and preferences of the ADP, protect the rights of the ADP, and make sure the petitioner proves their case. They can request documents (including medical records) and subpoenas , and depose witnesses. In court, they will present evidence, call witnesses, and make their arguments. They may seek to have the guardianship case dismissed, advocate for a limited guardianship (discussed below), or advocate for a certain person to serve as guardian.
The Alleged Disabled Person (ADP)
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