1. ELVILLE AND ASSOCIATES PRESENT: GUARDIANSHIP –
STEPHEN R. ELVILLE &
ELVILLE AND ASSOCIATES PRESENT: GUARDIANSHIP –
WHAT PARENTS NEED TO KNOW
By: Stephen R. Elville, J.D., LL.M. – Elville and Associates, P.c. Howard county’s 4th Annual Transitions symposium – “Stop waiting and start planning” Saturday, March 18, 2017

2. BRIEF OVERVIEW OF TODAY’S DISCUSSION
What is guardianship?
What are the benefits and drawbacks?
What are the questions every family should ask before making the decision to pursue guardianship?
What are the nuances of incapacity planning, including the importance of powers of attorney and advance medical directives in the planning process?

3. What is guardianship?

4. Guardianship
At age 18, an individual is presumed to have legal capacity
If loved one lacks capacity to manage personal or financial affairs, a court appoints a guardian or conservator to take control over that person’s affairs
Process - described

5. Guardianship There are two general types of Guardianship:
Guardianship of the Person
has the care, custody, control, and education of the person; and
Guardianship of the Estate (Property)
must manage finances and legal affairs

6. What are the benefits and drawbacks to guardianship?

7. BENEFITS OF GUARDIANSHIP
Ultimate level of control
Supercedes powers of attorney and advance directives
Guardianship Order
Certainty
Accountability
Court is the ultimate guardian

8. DRAWBACKS OF GUARDIANSHIP
Expense
Loss of independence for ward (rights, etc.)
Cumbersome and time-consuming
Annual accounting
Loss of certain flexibility
Potential for conflict
Process can be challenging

9. What are the questions every family should ask before making the decision to pursue guardianship?

10. QUESTIONS (1) Am I prepared to see this through?
(2) Am I emotionally prepared for the guardianship process?
(3) Do I have the support of family and the physicians?

11. Understanding the Nuances of Incapacity Planning
Powers of attorney advance medical directive molst – medical orders for life sustaining treatment

12. Advance Medical Directive
Will-Based Structure
Will
Power of Attorney
Maryland Statutory Power of Attorney
Supplemental General Power of Attorney
Advance Medical Directive
MOLST
Health Care Decision Making Worksheet

13. Advance Medical Directive
Incapacity Planning
Powers of Attorney
Maryland Statutory Power of Attorney
Durable General Power of Attorney
Advance Medical Directive
MOLST
Healthcare Decision Making Worksheet
GUARDIANSHIP

14. WHY IS THE MARYLAND STATUTORY POWER OF ATTORNEY (or others) “NOT ENOUGH”?
”Substantially Similar” requirement too onerous and ambiguous
Enhanced fiduciary powers necessary for contemporary estate planning
Elder law concerns
Planning for loved ones with special needs
SPECIAL INSTRUCTIONS PORTION NOT SUFFICIENT

15. ENHANCING THE MARYLAND STATUTORY POWER OF ATTORNEY
UTILIZE A TWO-TIERED APPROACH – TWO POWERs OF ATTORNEY
PERSONAL FINANCIAL POWER OF ATTORNEY, ALONG WITH A GENERAL DURABLE POWER OF ATTORNEY
UTILIZE REVOCABLE TRUST POWERS IN COORDINATION WITH POWERS OF ATTORNEY
BUILDS A BROAD PLATFORM OF FLEXIBIITY
UTILIZE SPECIAL AGENT AND TRUST PROTECTOR POWERS
COUNSELING IS KEY
POTENTIAL PROBLEMS

16. UTILIZING ENHANCED POWERS
POWER TO ESTABLISH REVOCABLE AND IRREVOCABLE TRUSTS
Customized further POWERs TO FUND TRUSTS
Customized further POWERs concerning ability TO CHANGE BENEFICIARY DESIGNATIONS
POWER TO MANAGE DIGITAL ASSETS
POWER TO MANAGE GOVERNMENT BENEFITS
POWER TO PERFORM A MEDICAID SPEND DOWN OF ASSETS
POWER TO CARE FOR AND DEAL WITH PETS
customized further POWERs TO GIFT ASSETS
POWERs TO manage care and RECEIVE COMPENSATION

17. UTILIZING ENHANCED POWERS (CONTINUED)
POWERs TO PROVIDE COMPANIONSHIP
Customized Further POWERS SPECIFIC TO OPERATE A BUSINESS OR BUSINESSES
Customized Further POWERs REGARDING SAFE DEPOSIT BOXES
POWERs TO FUND A FIRST PARTY SNT
Design Limitations on powers via special agent authority (or Trust Protector)

18. Effectiveness of Power of Attorney
Access to Power of Attorney
Durable General Power of Attorney ---- Effective Immediately
You (Principal) Your Attorney-in-fact ---- Power Immediate
Durable General Power of Attorney with Escrow
Springing or Contingent General Power of Attorney
You (Principal) Your Attorney-in-fact ---- Power Not Effective Until Principal’s Disability

19. Health Care Decision Making ADVANCE MEDICAL DIRECTIVE
Attorney General’s Form: recommended only
No required format: no limitations
Personal Input: important considerations
Personal preferences
Food, entertainment, visitations, communications, lifestyle
Appointment of agents
Effectiveness of power
End of life decisions (living will)
Flexibility options – can my agent change my decisions? (if they think another option is better?)
Organ donation options
Final arrangements (celebration of life options)

20. Medical Orders for Life Sustaining Treatment
MOLST
Medical Orders for Life Sustaining Treatment
Effective July 2013
Relates To Current Medical Condition
Health Care Decision Making Worksheet
Attorney General’s Publications

21. If you have any questions whatsoever, please call Steve at:
Thank you!!
If you have any questions whatsoever, please call Steve at:
, or at