Understanding Guardianship in Maryland: Person vs. Property

Navigating the legal landscape of guardianship can be complex, especially when it involves the well-being and assets of a loved one. In Maryland, guardianship is divided into two distinct types: guardianship of the person and guardianship of the property. Each type serves a unique purpose and involves different responsibilities. Let’s explore the differences between these two forms of guardianship and what they entail. 

Guardianship of the Person

Guardianship of the person is focused on the personal and medical care of an individual who is unable to make decisions for themselves. This type of guardianship is typically sought for minors, elderly adults, or individuals with disabilities who cannot make or communicate responsible decisions for their own needs.

Responsibilities of a Guardian of the Person:

1. Healthcare Decisions The guardian is responsible for making medical decisions on behalf of the ward (the person under guardianship). This includes consenting to or refusing medical treatments and ensuring the ward receives appropriate medical care.

2. Living Arrangements: The guardian decides where the ward will live, ensuring that the living conditions are safe and appropriate. This could involve arranging for in-home care, assisted living, or a nursing facility.

3. Personal Care: The guardian oversees the ward's daily needs, such as food, clothing, hygiene, and general well-being. This might include coordinating with caregivers or service providers.

4. Education and Social Activities: For minors or individuals with specific educational needs, the guardian ensures that educational and social activities are arranged and that the ward has opportunities for engagement and development.

Guardianship of the Property

Guardianship of the property, on the other hand, pertains to managing the financial affairs and assets of an individual who cannot do so themselves. This is often necessary when the ward has substantial assets that need to be protected and managed prudently.

Responsibilities of a Guardian of the Property: 

1. Asset Management: The guardian is tasked with managing the ward’s assets, including bank accounts, investments, real estate, and personal property. This involves making decisions to preserve and potentially grow these assets.

2. Bill Payments: The guardian ensures that all bills are paid on time, including utility bills, mortgage payments, taxes, and any other financial obligations.

3. Financial Planning: The guardian may need to create a budget, manage income, and plan for future financial needs to ensure the ward's long-term financial stability.

4. Legal and Financial Transactions: The guardian can enter into legal agreements and financial transactions on behalf of the ward. This includes filing taxes, dealing with insurance, and making any necessary legal claims.

Key Differences

 While both types of guardianship aim to protect and support individuals who cannot care for themselves, the key difference lies in their focus:

- Guardianship of the Person: Centers on personal, medical, and day-to-day care.

- Guardianship of the Property: Focuses on financial management and asset protection.

Seeking Guardianship in Maryland

In Maryland, the process for establishing either type of guardianship involves petitioning the court. The petitioner must provide evidence that the prospective ward is incapable of managing their personal or financial affairs. An attorney will be appointed to represent the ward's interests in the guardianship matter. If after a hearing the court finds that a guardianship is appropriate under the law, the court will appoint a guardian based on a statutory priority and in consideration of the ward's best interests. 

It’s important to note that the same individual can be appointed as both the guardian of the person and the guardian of the property, or these roles can be filled by different people depending on the circumstances and capabilities of the guardians.

Conclusion 

Understanding the distinction between guardianship of the person and guardianship of the property is crucial for anyone involved in the care of a vulnerable individual in Maryland. Each type of guardianship comes with its own set of responsibilities and challenges, but both are aimed at ensuring the well-being and security of those who cannot care for themselves without imposing unnecessary restrictions on a person's liberties. If you find yourself in a situation where guardianship might be necessary, consulting with an attorney at Markham Law Firm can help you navigate this important process.

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.