Guardianship is a legal tool used to keep “incapacitated” or “incompetent” individuals from putting themselves in harm’s way. Typically, guardianship is applied when a person’s cognitive decline, dementia, or Alzheimer’s makes them incapable of caring for themselves. While an elderly person who forgets names easily, or even what year it is, may not need a guardianship, an individual who is incapable of making informed medical decisions, or who puts themselves in danger by wandering down the center of a busy street may need guardianship.
How is Capacity (or Incapacity) Determined?
Because one person’s idea of “sound decision making” may differ from the next, it is hard to create a hard definition of capacity—one’s ability to make good or safe decisions for themselves. Capacity is a “fluid concept that changes according to the circumstances of the individual and the decision to be made.” Therefore, decision making capacity is based on the complexity of the decision, the decision-making strengths of the individual, the individual’s ability to communicate, and any other relevant events or circumstances. For example, a person suffering from dementia or cognitive decline due to aging may know how to cook nourishing meals for herself but not know how to get to the store to buy ingredients. Or, she may know how to write checks and count change at the grocery store, but not know how to log in to her online bank account to check the funds available. Neither of these examples would, by themselves, mean that she needs a guardian. Guardianship is only required when her decision making abilities have declined to the level where she is putting herself in unnecessary danger, such as refusing to go to doctor’s appointments or forgetting to bathe. “Competency” is another term that is used instead of capacity.
Proof of Incompetency: Certificate Of Competency
When petitioning the court for guardianship, the guardian must have medical proof in the form of two certificates of competency, issued by healthcare professionals who have both examined the alleged disabled person. The healthcare professionals can be:
- Two licensed physicians; or
- One licensed physician and one licensed psychologist/licensed social worker.
At least one of the healthcare professionals must have examined the individual 21 days before the petition is filed.
How to Become a Guardian
Maryland courts appoint guardians when it is proven that a person’s age, disease, or disability prevents them from taking care of the personal or financial needs. The court provides support for guardians in the form of an orientation program, training programs, and additional resources. To petition the court for guardianship of your elderly parent or loved one, a Pasadena attorney can help.
Our Maryland Guardianship Attorneys Can Assist You Today
If you have questions about the legality of someone becoming your guardianor if you believe your elderly loved one needs you to take on the role of guardian, our attorneys can help. Call our skilled Maryland guardianship attorneys at Frame & Frame today at 410-255-0373. We provide a very personalized approach to legal issues by listening to your story and creating unique solutions to take the weight off your shoulders.