NAELA Contested Guardianship and Fiduciary Litigation Presentation  

By:  Frederick R. Franke, Jr., and Jack K. Beckett

I. Is Guardianship The Appropriate Remedy?
a. Ask: Why Do You Need A Guardianship?

i. Guardianship is a comparatively drastic, invasive remedy. The end result is the Circuit Court assuming ultimate responsibility over the alleged disabled person. Kicherer v. Kicherer, 285 Md. 114 (1979). The alleged disabled person loses the right to make important decisions about his or her living arrangements, finances, etc., depriving him or her of an important liberty interest. In re Lee, 132 Md. App. 696 (2000). The Court obtains a permanent role in overseeing the finances and well-being of the alleged disabled person. From a practical perspective, it may create an adversarial dynamic between the person bringing the claim and the alleged disabled person.

ii. Obtaining a guardianship does not, in and of itself, remedy other losses or financial abuses that have taken place. For example, if a family member has been misappropriating funds, the guardianship may help to prevent further abuse, but will not remedy past harms.

iii. Additionally, there may already be other asset management mechanisms in place. These include powers of attorney, revocable trusts, or joint bank accounts. Depending on the type of harm that has occurred, Maryland law provides a number of causes of action that may be asserted either in lieu of or in addition to a guardianship proceeding.

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