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.
