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What is Maryland’s standard for determining incapacitation?

Bringing up the issue of adult guardianship is never easy, yet there may reach a point where circumstances dictate that your loved one have someone who is specifically assigned to see to his or her well-being. He or she might not necessarily agree with your assessment, but that is understandable given the hesitancy that anyone would experience at the thought of surrendering important personal powers and authorities to someone else. If, however, he or she continues to refuse such care, you may be forced to take matters into your own hands. 

Section 13-705 of Maryland’s Estates and Trusts Code says that you (or any other interested party) may petition the court to have an ailing loved one be declared incapacitated. The state’s standard for defining incapacitation is one lacking the ability to make or communicate responsible decisions regrading the provision of his or her own care due to any of the following reasons: 

  • Mental disability 
  • Disease
  • Habitual drunkeness
  • Drug addiction

Other, less-restrictive options for care and assistance must also be explored (and ultimately proven to be inadequate) before the court will consider ruling on one’s capacity. 

A petition asking the court to declare one to be incapacitated must be accompanied by two certificated of competency from licensed healthcare professionals. These statements can be made two separate physicians, or a physician along with a licensed psychologist or a licensed social worker. The examinations from which these statements are derived must have occurred within 21 days of your filing your petition with the court. Your loved one is entitled to be present at the hearing if he or she so chooses, and he or she has the right to challenge any statements made in his or her regard, as well as present his or her own evidence. 

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