Maryland Guardianships— Don’t Get ‘Britney Speared’
August 24, 2021
By: Lee Carpenter
In Maryland, we have legal safeguards in place to help prevent someone from losing their autonomy without good reason. Just as importantly, there are steps you can take to help prevent the wrong person from taking control of you and your finances in a crisis.But first, what exactly is a conservatorship? In Maryland, this legal relationship is called a “guardianship of the property” and is created to enable someone, called the “guardian,” to manage the finances and property of another person who cannot manage on their own, the “ward.” If the disabled person also needs someone to make decisions about their health care, shelter, or other daily needs, a “guardianship of the person” may also be created.
A guardianship begins after a judge has weighed the facts in the matter and determined that the disabled person does in fact need a guardian. Separate attorneys must represent the allegedly disabled person and the potential guardian in court. Affidavits from doctors who have examined the allegedly disabled person are entered into evidence.
At a hearing, the two attorneys can make legal arguments for and against having the guardian appointed. In some cases, the person in question is so profoundly disabled that the attorneys will agree that a guardianship is necessary.
Once appointed, the guardian must keep careful records of the ward’s income and expenses and file an annual accounting with the court. As compensation for their work, the guardian is entitled to receive a commission with court approval.
A guardianship can be created for someone with a serious medical condition, such as Alzheimer’s disease, or a genetic disorder like Down syndrome. Drug addiction, alcoholism, or an acute mental disorder can also be grounds for appointing a guardian. If the circumstances are serious enough—as in Britney Spears’s case—a guardianship can be created against the disabled person’s will.
Some people’s lives improve dramatically under the care of a guardian. But in some cases, the wrong person is appointed and the relationship between guardian and ward is antagonistic and hurtful, as Britney knows all too well.
What can you do to avoid being “Britney Speared”? One effective strategy is to prepare a Durable Power of Attorney. This document authorizes someone you trust to manage your finances if you ever become unable to do so for yourself. Just as important is an Advance Medical Directive, which names someone to manage your health care if you can no longer speak for yourself. For both documents, the person you appoint could be your spouse or partner, an adult child, or a close friend. And in case that person isn't available when the need arises, and backup should be named as well.
These documents can help you avoid a guardianship because the powers they confer are virtually identical to those of a legal guardian. Just be sure to have your attorney include language in both documents saying that if a guardian does need to be appointed, it should be the same people you have named as your "attorney in fact" and "health care agent."
Avoid what Britney describes as a life that “has been so overprotected” by calling an Estates & Trusts attorney today.
Lee Carpenter is a partner at the Baltimore law firm of Niles, Barton & Wilmer and an adjunct professor at the University of Maryland Carey School of Law. He can be reached at (410) 783-6349 or firstname.lastname@example.org. Learn more about LGBTQ estate planning at mdlgbtestateplanning.com. This article is intended to provide general information about legal topics and should not be construed as legal advice.