Understanding Guardianship in Maryland: When Is It Appropriate?

In Maryland, guardianship is a legal arrangement where a court appoints a person (the guardian) to make decisions for another person (the ward) who is unable to make decisions for themselves due to reasons such as age, incapacity, or disability. This blog aims to provide a clear understanding of when guardianship is appropriate and the process involved in Maryland.

What Is Guardianship? 

Guardianship is a legal relationship established by a court order. It involves:

1. Guardian: The person appointed to make decisions on behalf of the ward.

2. Ward: The individual who needs assistance with decision-making. In Maryland, until a guardianship is established by the Court, the ward is often referred to as an "Alleged Disabled Person."

Guardianship can be of the person, of the property, or both:

- Guardianship of the Person: The guardian makes personal decisions for the ward, such as those related to healthcare and living arrangements.

- Guardianship of the Property: The guardian manages the ward's financial matters, including assets and income.

When Is Guardianship Appropriate? 

Guardianship is generally considered a last resort because it removes a person’s rights to make their own decisions. Maryland law provides for less restrictive alternatives to guardianship and requires that guardianship only be imposed when there is no less restrictive alternative available which protects the ward. Guardianship is appropriate in the following situations:

1. Minor Children

Guardianship may be necessary for minor children (under 18 years old) when:

- The parents are deceased.

- The parents are unfit or unable to care for the child.

- There is no other parent, family member, or adult willing or able to take responsibility.

2. Adults with Disabilities

For adults with disabilities, guardianship might be necessary if:

- The individual has a significant intellectual or developmental disability.

- The individual is unable to make or communicate responsible decisions about personal care, finances, or health due to mental disability, disease, habitual drunkenness or addiction to drugs.

- There are no less restrictive alternatives, like a power of attorney, that can meet the person’s needs.

3. Elderly Individuals

Elderly individuals may need a guardian if they:

- Have dementia, Alzheimer's, or another condition that significantly impairs their cognitive functions.

- Cannot manage their personal or financial affairs.

- Are at risk of abuse, neglect, or exploitation and need protection.

4. Emergency Situations

In emergency situations where an individual is in immediate danger or is unable to care for themselves due to a sudden illness or accident, temporary guardianship can be established by the court to ensure the person's safety and well-being.

The Guardianship Process in Maryland

The process to establish guardianship in Maryland involves several steps: 

1. Filing a Petition

A person seeking that a guardian be appointed must file a petition with the Circuit Court in the county where the ward lives. The petition should include:

- Detailed reasons why guardianship is necessary.

- Information about the proposed ward’s condition and incapacity including medical certificates.

-Reasons why less restrictive alternatives would be ineffective or have been attempted and failed

- The proposed guardian’s qualifications and willingness to serve.

2. Evidence and Right to Counsel

Two certificates of incapacity must be provided, from at least one doctor and either a second doctor or a psychologist, social worker or psychiatrist, attesting to the proposed ward’s inability to manage their personal or financial affairs. An attorney will be appointed on behalf of the alleged disabled person to ensure their right to due process is protected.

3. Court Hearing 

The court will schedule a hearing where: 

- Evidence is presented regarding the Alleged Disabled Person's condition and need for guardianship.

- Interested parties can express their views.

- The proposed guardian’s suitability is evaluated.

-If finances are involved, bond is either ordered or waived.

 4. Court Order

If the court finds guardianship is necessary and that the proposed guardian is suitable, it will issue a guardianship order specifying the scope of the guardian’s powers and responsibilities.

Alternatives to Guardianship 

Before pursuing guardianship, it’s important to consider less restrictive alternatives that might be sufficient, such as:

- Power of Attorney: If the person has capacity, it allows a person to appoint someone to make decisions on their behalf.

- Health Care Agent/Proxy: If the person has capacity, they can appoint someone to make healthcare decisions in the event they become incapacitated.

Conclusion

Guardianship is a significant legal step that should only be taken when necessary to protect a person who cannot protect themselves. In Maryland, it is used to ensure the safety and well-being of minors, adults with disabilities, and elderly individuals who are unable to make decisions due to incapacity. By understanding the process and exploring all alternatives, guardianship can be effectively utilized to support those in need while respecting their rights and autonomy.

Further Resources

By understanding when and how guardianship is appropriate, we can better ensure that vulnerable individuals receive the care and protection they need. If you feel that guardianship is an option for your family, call Markham Law Firm to learn more.

Navigating Family Disagreements: What to Do When Siblings Can't Agree on Elderly Parent Care in Maryland

 Caring for an elderly parent is a significant responsibility that often requires cooperation and coordination among siblings. However, disagreements can arise, making it challenging to determine the best course of action. In Maryland, there are several steps you can take if you and your siblings cannot agree on who will care for your elderly parent or the care they will receive.

 Understanding the Challenges

Disagreements among siblings can stem from various factors, including:

• Different Opinions on Care Needs: Siblings may have differing views on the level of care required for an elderly parent, such as in-home care versus nursing home placement.

• Geographical Distance: Siblings living far away may have different perspectives compared to those living nearby. Conflicts may arise between siblings when geographic distance or other factors lead to an uneven allocation of responsibility when caring for an elderly parent.

• Financial Concerns: Disputes may arise over how to finance care for an elderly parent and who will bear the financial responsibility.

• Emotional Factors: Old family dynamics, unresolved conflicts, and emotional stress can exacerbate disagreements.

Steps to Resolve Disagreements

1. Open Communication

Start with open and honest communication. Schedule a family meeting to discuss your concerns and preferences. Ensure everyone has an opportunity to express their views and listen to each other without interruption. Sometimes, understanding each other’s perspectives can help find common ground.

2. Seek Help from Neutral Third Parties

If discussions among siblings reach an impasse, consider involving a neutral third party to help. A trusted third party such as another family member or a clergy member could help resolve the dispute. Or, you can engage a mediator. A mediator can facilitate productive conversations and help the family reach a consensus. Mediation services are available through community organizations, legal aid societies, and private mediators specializing in family disputes.

3. Consult a Geriatric Care Manager

A geriatric care manager is a professional who specializes in elder care. They can assess your parent's needs and provide recommendations for care options. Having an expert opinion can sometimes help siblings agree on the best course of action.

4. Involve a Family Therapist

Family therapists or counselors can help address underlying emotional issues and improve communication among siblings. Therapy can be particularly beneficial if long-standing conflicts are contributing to the disagreement.

Legal Options 

If informal attempts to resolve the disagreement fail, legal intervention may be necessary. There are a number of legal options that may be available to allocate decision-making responsibilities and to ensure proper care for an elderly parent:

1. Power of Attorney

If your parent still has the mental capacity to enter into a legal document, they can execute a power of attorney (POA) document and Advanced Healthcare Directive (AHD), designating one or more individuals to make decisions on their behalf. Having your parent designate others to make such decisions while they are still able to do so can prevent sibling disputes in the future and can ensure that your parent's wishes are honored.  

2. Guardianship

If your parent is no longer capable of making decisions and does not have a POA or AHD, you may need to seek guardianship through the court. Guardianship grants one or more individuals the legal authority to make decisions about their parent's care and/or management of property and finances. A guardian can be appointed for the person, property, or both. The court will evaluate the situation and if no less restrictive alternative is available, will appoint a guardian or guardians to serve in the best interest of the parent.

Here’s what to expect in such a scenario: 

1. Petition for Guardianship: One or more siblings can file a petition for guardianship with the court. The petition should outline why guardianship is necessary and who is best suited to serve as guardian. In most cases, a petition must be accompanied by certifications regarding your parent's mental capacity.

2. Appointment of Attorney for the Alleged Disabled Person. The court will appoint an attorney to represent your parent's interests. Such attorney will ensure your parent receives due process and that their preferences are stated.

3. Notice to Interested Parties. Notice of guardianship proceedings will be served on individuals and institutions designated under the law to be "interested persons." All interested persons will be given the opportunity to assert their position regarding the appropriateness of the guardianship and/or the fitness of the proposed guardian(s).  

4. Hearing: The court will hold a hearing where all interested parties can present their case. The judge will then make a decision based on the evidence and testimony provided.

5. Appointment: The court may appoint a guardian, who will have legal authority to make decisions about your parent's care, property, or both. In some cases, the court may appoint co-guardians if it believes that shared responsibility is in the best interest of your parent. Guardianship of the person and guardianship of the property can also be awarded to separate parties.

6. Ongoing Oversight of the Court. The court has ultimate oversight over guardianship matters. Certain training and filings may be required of guardians to ensure that guardians are acting in the parent’s best interests.

Conclusion

Remember, the primary goal is to ensure your parent receives the best possible care while respecting their wishes and needs. Seeking legal advice and involving professionals can help navigate this complex and sensitive process. Please contact our office to speak with a dedicated family law attorney. Our group of highly experienced attorneys are ready to help answer your questions and guide you through this process.