Guardianship. July 2018.
By Timothy S. Barkley, Sr.

The lawyer’s telephone rang.  A man’s voice on the other end spoke urgently: “My name is Henry Jones.  My mother, Ophelia Jones, fell yesterday and is in the hospital.  I saw a power of attorney on her desk with your card.  Did she sign it?”

“I’m sorry, Henry” replied the attorney.  “I hope she’ll be OK.  Your mother only took it home a few weeks ago to review it, and hadn’t called to set up a time to sign it.  Unless she signed it somewhere else, it’s probably not signed, and not effective.”

“Can I get her to sign it in the hospital?” the son asked.

“That depends.  Is she mentally ‘with it’?”

“No,” Henry lamented.  “She hit her head pretty hard on the coffee table when she fell, and doesn’t know anybody.  They say she had a concussion and her brain is swelling.  The doctors and nurses at the hospital are great, but they want to know who can sign for her care, and who’ll be paying the bills.”

The lawyer sighed.  “She said you’re the only child, so unless she has a spouse she didn’t mention to me, you can sign for her care under Maryland law.  If you had brothers and sisters, the decision would have to be made unanimously, but that’s not an issue here.

“On the payment of the bills, though, you can’t have her sign a power of attorney if she’s not in her right mind.  The bank isn’t going to allow you to write checks for her or get money from her bank account without a power of attorney, unless you’re on her account.  Are you a joint owner or POA on her account?”

“No,” Henry moaned.  “After Dad died a couple of years ago, she wouldn’t put me on the account as joint owner – she said you wrote an article saying that was a bad idea.  She was going get a power of attorney written and take it to the bank, but I guess she hadn’t gotten around to it.”

“Touché,” smiled the attorney, “but she was right.  Joint ownership can cause more problems than it solves.  She said you’d just been through a nasty divorce.  Can you imagine what your ex-wife’s attorney would have tried if you’d been a joint owner of your mom’s bank accounts?

“If your mother’s mental capacity comes back, this whole problem will go away.  If she doesn’t regain capacity, then you’ll need to file for guardianship.”

“How does that work?” Henry queried.

“Guardianship appoints you to do whatever she needs.  If the Court appoints you her guardian, she will be legally unable to make her own decisions, so it’s a drastic step and one the Court won’t take unless it decides that guardianship is the least restrictive means to provide for your mom’s needs.

“Guardianship starts with filing a petition.  You have to submit certificates from two doctors that explain your mother’s inability to make her own decisions and any physical disability, and estimate how long her mental or physical disability will last.

“Assuming that the doctors tell the Court that your mother’s mental or disability will be long-term or lifelong, then the Court can appoint you guardian of her person and property.  The former allows you to make personal and medical decisions for her; the latter allows you to control her finances and assets.  Both require you to report to the Court annually.

“Guardianship takes several months, unless there’s some sort of emergency, and costs a few thousand dollars.  It’s also a public proceeding, which can be embarrassing.  Unless there’s something pending that requires immediate action, let’s wait and see if your mother regains her competency.  Has the doctor said she won’t?”

“No,” Henry replied, “they haven’t said anything yet.”

“Then call me if anything comes up.  Let’s wait a few weeks and see if she gets better.  I hope so.”

“Me, too,” Henry sighed.  “Me, too.”


Attorney Tim Barkley
The Tim Barkley Law Offices
One Park Avenue
P.O. Box 1136
Mount Airy
Maryland 21771

 (301) 829-3778

Wills & Trusts | Estate Planning | Probates & Estates
Elder Law | Real Estate | Business Planning