A guardianship is a court approved process that occurs when an allegedly disabled person (ADP) or minor (ward) cannot take care of him/herself and his/her property and requires another person’s care. This “other person” is the guardian. The guardian is appointed by the court.
There are two forms of guardianship that may take effect in different circumstances:
Guardianship of a person occurs when the ADP is unable to care for himself physically or if a minor has no living adult parent. An “interested person”, someone interested in the person’s wellbeing (a relative or friend), may ask the court (petition the court) to be the appointed guardian. The court will either approve or deny the interested persons request.
A guardian may also be nominated in the will. A parent may name a relative or friend in his/her will as guardian for his/her child if the parent dies before the child reaches 18. Maryland does not require a court approval for this type of guardianship nomination (testamentary guardianship). However, if the parent does not have will or fails to name a person as a guardian of his/her minor child, a guardianship proceeding will be initiated on the child’s behalf to nominate a guardian.
Guardianship of property occurs when the ADP or ward is unable to manage, transfer or legally interact with his property or finances. If an adult is determined incapacitated by certified physicians, he cannot legally control his financial affairs, and therefore a guardianship of his/her property is required.
Minors may receive small amounts of money and property, however, minors cannot legally manage their money or property. The minor lacks legal capacity and therefore cannot sell, transfer, or dispose her property. Problems arise when it is necessary or desirable to use or transfer the minor’s funds. Due to the minor’s inability to engage in any legal transactions involving her property, a guardianship is required. The guardianship involves a court-appointed guardian who will manage your daughter’s inherited funds.
Surprisingly, the parents of a minor are not automatically the legal guardians of their children’s property. Parents are usually the natural guardians of the persons of a minor, but that guardianship may not extend to the assets, money, or business transaction of their minor children. Therefore, if your minor child receives an inheritance or a judgment, a guardianship of the property must be initiated I order to protect and manage the money for the minor.
Consulting an attorney about proper estate planning can avoid guardianship court proceedings of the person and property, and also avoid untimely delays, costs, and potential family feuds.
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