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Legal Matters: ‘Clear and convincing’ evidence needed to show an adult needs a guardian

Sometimes, an adult needs a guardian.

Parents are the natural guardians of their minor children, who are not expected to be able to make financial decisions or other life decisions, such as where and how they will live. When children reach adulthood, they gain the right to manage their own lives.

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Adults may need guardians if they have disabilities that impair their ability to make decisions, need protection and there is no less restrictive alternative. Guardianship allows a court-appointed guardian to make decisions about a disabled adult’s person or property, such as where she will live, how her basic needs for food, clothing and shelter will be met and how her property will be managed.

Guardianship is a helpful alternative for adults who cannot handle adult responsibilities. But the state’s interest in protecting a disabled adult also extends to attempting to ensure that the guardian acts in the disabled person’s best interest.

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Maryland lawmakers have written protections for disabled adults into state statutes. Guardianship strips an adult of many of the rights he has enjoyed, especially the right to manage his own finances. Without a protective legal process, some members of his family or close friends might “manage” some of his money into their own pockets.

When any adult goes to court seeking guardianship of an aged or disabled adult, he may ask to be appointed guardian of the person or property, or both. A guardian of the person can make decisions about the disabled adult’s housing, medical treatment, health care, food, clothing, or shelter. A guardian of property makes decisions about how, where or when to spend the disabled person’s money or how to administer her property. A guardian can sell the disabled person’s house and other assets, and invest the proceeds as he chooses.

If a judge determines from clear and convincing evidence that a person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person or property, including provisions for health care, food, clothing or shelter, the judge may appoint a guardian.

What is “clear and convincing?” It can be a squishy term. In a 1984 lawsuit that pitted the state of Colorado against New Mexico, the Supreme Court defined “clear and convincing” to mean evidence that is, “highly and substantially more likely to be true than untrue; the fact finder must be convinced that the contention is highly probable.”

No single rule exists to determine whether an adult is incompetent. Grownups have the right to do dumb things. But family members may become concerned when, for example, Aunt Mary writes $10,000 checks to charities, leaving herself without adequate funds to meet her expenses for the next several months.

If she does not appear to understand that she has put herself in a financial bind, and resists informal efforts to have a family member manage her assets and pay her bills, family members may conclude that they need to petition for guardianship.

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