July 2024.
Q: I’m the court-appointed guardian for my brother. He just died. What do I have to do?
A: I’m sorry, both that your brother passed away and that you have to go through all the steps required for the termination of a guardianship. First, you have to petition the court to terminate the guardianship. The process is different for guardianship of the person and guardianship of the property. Strangely, even though your brother is deceased, the guardianship of his person doesn’t terminate until the court says so. It’s important to note that you only have 45 days from the date of his death to do this. For guardianship of the property, you have to give a final account of his financial affairs, and petition the court to terminate the guardianship. If there are any assets, you have to open his estate and list the same assets on the estate paperwork. It can be very frustrating – even though the guardianship has ended, you’re still tied up with paperwork, sometimes for a year or more. That’s why I recommend powers of attorney and medical directives, when possible. We can avoid all that.
Q: I am trying to take over guardianship of my adult disabled brother as his father is no longer able to look after him. I think a judge is going to order that change. Can I petition that same judge to also take over my father’s affairs so I can take care of them both financially? Would I be able to sell my father’s house, for example, to allow him to go into an assisted living facility?
A: That would require a separate guardianship petition and filing. There are two types of guardianships – of the person, for medical decisions and personal care; and of the property – for asset management. It sounds like you want guardianship of your father’s person and property. You’ll need certificates from two medical professionals who have evaluated your father and opine that he is unable to manage his own affairs. If your father doesn’t want to move to an assisted living facility, you’ll need to be ready to argue against his attorney who will be contesting the guardianship on his behalf. But once you are appointed as your guardian of your father’s person – so you can move him – and property – so you can sell his house – then you could proceed. And guardianships don’t end until the judge terminates them. So first you have to petition for appointment as a successor guardian of your brother, and if he has property, you’ll have to account for the property at the end of your father’ guardianship and the beginning of your own.
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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