The Fox is Guarding the Hen House in a Maryland Guardianship

In Maryland, if one asks a Court to appoint a guardian for a person who is alleged to be disabled (the “alleged disabled person”) where such alleged disabled person is believed to be unable to manage his or her own affairs, the Court will appoint a lawyer to represent the alleged disabled person (the “court appointed counsel”). Sometimes, if there is a need to take immediate action to protect the alleged disabled person, the Court might, on the strength of a petition alone, appoint a temporary guardian for the alleged disabled person, which temporary guardian often is a lawyer chosen by the court.

In theory, the court appointed counsel and the temporary guardian are fiduciaries whose job it is to protect the interests of the alleged disabled person. Sometimes, however, it appears that such court appointed fiduciaries do not fulfill that responsibility.

Consider the following circumstance.

A health care facility is caring for Husband. Wife is unhappy with the facility’s treatment and wants husband to come home, and for the moment is withholding payment. Wife holds a financial power of attorney and a medical power of attorney for her husband, meaning that she has authority to manage his personal, medical, and financial affairs.

Rather than deal with Wife’s concerns head on, the health care facility petitions a court to have a guardian appointed for Husband, seeking the appointment of a guardian of the person to make medical decisions and a guardian of the property to manage financial affairs. Moreover, the health care facility requests in its petition that a temporary guardian immediately be appointed to pay the health care provider’s bill. The Court reads the petition and appoints a lawyer familiar to the court as temporary guardian.

Indeed, the health care facility requested that a specific lawyer be appointed temporary guardian, having first consulted with that lawyer to ensure that she was willing to serve as temporary guardian. Before the court decides whether to appoint a temporary guardian, however, that same lawyer who was proposed to serve as temporary guardian had a meeting with a new client. That new client was the Wife in the case at issue, and the lawyer advised Wife that she would represent Wife and resolve Wife’s problem with the guardianship petition for a five figure fee. Wife chose not to proceed with that lawyer. Without advising the court that she had met with Wife, which would cause a conflict of interest in the guardianship case and preclude the lawyer from being appointed temporary guardian, the lawyer was appointed temporary guardian for Husband.

In addition to appointing a temporary guardian, the court appointed another lawyer as court appointed counsel to represent the alleged disabled Husband. Without making any inquiries as to whether there was any mechanism, such as a power of attorney, that was less restrictive than a guardianship to manage Husband’s medical and financial affairs – which less restrictive means would, under the law, disallow a court from appointing a guardian – court appointed counsel notified the court, in her role as lawyer for Husband, that court appointed counsel would not challenge the petition to appoint a guardian of the person and the property.

With respect to both fiduciaries in this example, the temporary guardian and the court appointed counsel, each of which stood to collect court ordered fees from Husband’s assets if a guardian were to be appointed, it appears that the fox is guarding the hen house, to make reference to a well known folk tale.

While the example above may seem far fetched insofar as one might think that no court would appoint such fiduciaries, the example above is strikingly similar to a case I handled recently. Fortunately, the Wife in my real life case met with me in time to derail the injustice that would arise if a guardian of person and property were appointed in such a circumstance.

In my representation, I contacted the temporary guardian to point out her conflict of interest and persuaded her to refuse to accept the appointment as temporary guardian. I then made, on Wife’s behalf, a demand that the health care facility present the testimony of doctors to prove husband’s inability to manage his affairs (which fact, absent my demand, could be proven merely by submitting written statements asserting Husband’s disability). I also pointed out to both the lawyer for the health care facility and the court appointed counsel for Husband that there were less restrictive means to manage Husband’s assets thereby precluding a court from appointing a guardian.

Nevertheless, the health care facility was unwilling to withdraw its guardianship petition, and court appointed counsel appeared ready to go along with the court appointing a guardian for husband. On the day of the hearing, I appeared with Wife, ready to shoot down the petition for guardianship. When the case was called, the Judge stated that, based upon his reading of the documents filed in the case and because court appointed counsel was not challenging the guardianship, the judge would go ahead and appoint a guardian of the person and property.

At that point, I stood, prepared to address the court and to state Wife’s opposition to the court appointing a guardian for Husband, when, catching my eye, the lawyer for the health care facility quickly stood up and advised the court that the health care facility was withdrawing its petition.

If not for the timely intervention of the Gatesman Law Office in that case, a court would have appointed a guardian of the person and property for an individual for whom there was a less restrictive means to manage the assets (and likely would have made the temporary guardian the permanent guardian of the property). The court also would have ordered that the fees of court appointed counsel and the temporary guardian would be paid using Husband’s assets. That would be an unjust outcome, but it is an outcome that was prevented through our representation of Wife, who was an “interested person” who had standing to intervene in the case to protect Husband’s interests. Moreover, our representation of Wife was for a fee that was significantly less than the fee quoted by the lawyer who ultimately was appointed temporary guardian.

Some time later, the Gatesman Law Office received a notice that the health care facility would pay the fee of the lawyer appointed to represent the alleged disabled person.

William M. Gatesman stands ready to intervene to assist clients in preventing unjust outcomes in guardianship cases and other matters, even in the face of deeply entrenched special interests that might sometimes be seen as the fox guarding the hen house.

When a Mere Guardianship is Not Enough

Father, who had been enjoying late middle age, had a brain aneurysm and now is in a permanent coma. Unfortunately, he did not have a power of attorney or advance directive, so his adult son could not access his bank account, in which he had $20,000. He has no other assets. Father’s hospital and nursing home bills now exceed $300,000.

Son applied for Medicaid for his father but was denied benefits because Medicaid will not be allowed if Father has more than $2,500. Unfortunately, without a power of attorney, no one has the authority to spend the funds in Father’s bank account so that he can get Medicaid benefits.

Click here to read the rest of the story…

Maryland Legislature Changes the Rule Regarding Paying Guardianship Fees After Ward Dies

In January, 2008, I wrote an article on the Maryland Court of Special Appeals Case, Battley v. Banks (Md. App. December 20, 2007). In that case, the Court ruled that, upon the death of the disabled person (a disabled person under a guardianship is called the “ward”), the ward’s assets become the property of the personal representative of the ward’s probate estate, or if none is appointed immediately, then the guardian must hold the property to be transferred to such personal representative when appointed. Moreover, the Court ruled that the guardian may not pay himself compensation for services or pay any legal fees even after the guardianship court approves such compensation and fees. Instead, the guardian and the lawyer, once the guardianship court approves such fees, must file a claim in the ward’s probate estate to be paid by the Personal Representative of such estate.

That rule, however has been changed by the Maryland legislature, such change to be effective October 1, 2010. The new legislation changes the Annotated Code of Maryland, Estates and Trusts Section 13–214(c)(3).

After October 1, 2010, the relevant statutory provision will read as follows:

When a minor or disabled person dies, the guardian shall deliver to the appropriate probate court for safekeeping any will of the deceased person in his possession, pay from the [guardianship] estate all commissions, fees, and expenses shown on the court-approved final guardianship account, inform the personal representative or a beneficiary named in [the will] that he has done so, and retain the balance of the estate for delivery to an appointed personal representative of the decedent or other person entitled to it.

In the meantime, the strictures of Battley v. Banks shall apply.