Guardianship in Maryland
When someone cannot make their own decisions, and no document is in place.
Guardianship is what happens when an adult can no longer make decisions for themselves and has not signed the documents that would let someone act on their behalf. It is a court proceeding, it is public, and it is more burdensome than the alternatives. It is also sometimes unavoidable.
Two kinds
Guardianship of the person covers decisions about where someone lives, their medical care and their daily welfare.
Guardianship of the property covers their money and assets: paying bills, managing accounts, protecting property.
They are separate appointments. A court may order one without the other, and they can be held by different people.
What a court requires
Guardianship removes rights from an adult, so courts do not grant it lightly. The petitioner has to show that the person lacks sufficient understanding to make or communicate responsible decisions, and that no less restrictive alternative will meet the need. Medical evidence is required, the person is entitled to notice and to be heard, and they may be represented by counsel.
That last requirement matters: if a valid power of attorney or advance directive already exists and is working, a court will generally say the less restrictive alternative is already in place.
Guardianship of a minor
A separate situation, arising when a child’s parents have died, are unable to care for them, or their rights have been terminated. The standard is the child’s best interests.
The ongoing obligation
Appointment is not the end of it. A guardian of the property files an inventory and periodic accountings with the court and remains answerable for how the money was handled. A guardian of the person reports on the individual’s condition and circumstances. These duties continue for as long as the guardianship does, and they are the part people least expect.
How to avoid needing one
Most adult guardianships in Maryland could have been prevented by two documents signed while the person still had capacity:
- A durable power of attorney, so someone can manage finances
- An advance directive, so someone can make health care decisions
Between them they cover almost everything a guardianship would, without a court, without the public filing, and at a fraction of the cost. For a family member with a disability, a special needs trust handles the financial side without disturbing benefits.
The window for signing those documents closes when capacity does. That is the whole argument for doing it early.
Related
Official resources
Talk with a Towson attorney
The Law Office of Thomas K. Mallon, LLC offers a free consultation. Call (410) 847-9075 or request a consultation online. The office is at 1107 Kenilworth Drive, Suite 305, Towson, MD 21204.
This page provides general information about Maryland law. It is not legal advice, and reading it does not create an attorney-client relationship. Maryland law changes, and how it applies depends on the facts of your situation.