Adult Guardianship

Topics on this page

What is adult guardianship?
Types of Guardians
When would an adult need a guardian?
How does a court decide what to do?
Consider Alternatives

What happens when someone becomes disabled and can no longer care for themselves or their finances? Perhaps that person has dementia, suffered a stroke, or has another condition that renders them unable to act. That person’s personal and/or financial affairs must be put in order and kept in order so that their needs can be met for as long as possible.

Often, the answer is to initiate a guardianship court proceeding on behalf of that disabled adult. When an adult is unable to make their own decisions, such as medical decisions, or handle their own property, a court can appoint a guardian.

What is adult guardianship?

Adult guardianship is a formal court process used to appoint someone as guardian to manage a disabled person’s care and/or property.

A guardianship is necessary when:

a physician, psychologist, or certified clinical social worker determines that a disabled person is unable to make responsible decisions concerning their medical care or financial matters, usually because of a physical or mental disability; and
no alternatives to guardianship are available, such as a general financial power of attorney or a health care power of attorney. Learn more about powers of attorney.

The court will review the testimony and evidence regarding whether a person is, in fact, disabled. If the testimony and evidence confirm the disability, the court will determine who should be the guardian. Then, the court will issue an appropriate court order appointing a person to serve as the guardian of the disabled person on behalf of the court.

In guardianship matters, a court assumes jurisdiction over a disabled person to protect that person who, because of illness or other disability, is unable to care for themselves. Ultimately, the court is the guardian. The court-appointed guardian serves as the court’s agent to carry out the court’s responsibilities. Read the various rules and requirements of guardians with this important point in mind.

Read the law: Md. Code, Estates and Trusts Article, Title 13, Subtitle 2 and Subtitle 7

Read the case: Kircherer v. Kircherer, 285 Md. 114 (Court of Appeals 1979)

Adult Guardianship: Introduction to Adult Guardianship from the Maryland Courts

Types of Guardians

Guardian of the Person – A guardian of the person takes care of the disabled adult's personal and physical needs. This includes providing for everyday needs, such as:

food,
clothing,
housing,
medical care
social decisions.

This can also include arranging for services and care for the disabled person. For example, a guardian may need to arrange for a home health aide to care for the disabled adult. The guardian advocates for the disabled person and acts in their best interests. The court order will have specific information about the guardian’s responsibilities and powers.
.

Guardian of the Property – A guardian of the property manages the disabled person’s financial affairs and makes financial decisions that are in their best interests. Examples of financial decisions include:

collecting income,
applying for benefits,
managing property
paying bills.

The court order will have specific information about the guardian of the property’s responsibilities and powers.

Guardian of the Person and the Property – The court can appoint one person to manage the disabled person's personal and financial affairs. The court can also appoint one person to manage the disabled person’s personal affairs and another to manage the person’s financial affairs.

When would an adult need a guardian?

There may come a time during an elderly person’s life when someone else has to make decisions concerning their medical care or financial affairs. But at what point can a person no longer legally make those decisions? When are they considered legally “incompetent?”

Legal discussions on this issue refer to a person’s “capacity” rather than “competence.” Determining someone’s mental capacity is a tricky legal puzzle. It’s difficult to pinpoint when a disease has progressed enough to impair someone’s ability to meet the legal standard. Simply being diagnosed with a disease is not enough evidence, on its own, to show that a person cannot make their own decisions . For instance, someone diagnosed with Alzheimer’s might still be perfectly capable of handling their bills on time.

Guardian of the Property: A court will establish a guardianship for a person’s property when it can be shown that a person has property or benefits needing proper management, but the individual cannot do so due to a physical or mental disability, illness, or other qualifying conditions. Typically, demonstrating an inability to balance a checkbook, manage household bills, or handle email responsibly due to a medical condition satisfies this requirement. Subsequently, the court can appoint a guardian to manage the disabled person’s property on their behalf. However, it is essential to demonstrate to the court that no less restrictive alternatives exist.

Read the Rules: Md. Rules, Title 10, Chapter 300

Guardianship of the Person: A person is legally disabled, or lacking legal capacity, when they do not possess adequate understanding or capability to make or communicate responsible decisions regarding their own welfare. This includes making decisions on matters such as healthcare, sustenance, clothing, or shelter. The disability can be because of:

mental disability
disease
habitual drunkenness
addiction to drugs

Establishing a guardianship of a person will be necessary in two primary situations:

Where the disabled person failed to execute a health care power of attorney and certain medical procedures are necessary that require consent.
When more than one person in the family wants to care for a disabled person, and the family is unable to resolve this conflict on its own.

Read the Rules: Md. Rules, Title 10, Chapter 200

How does a court decide what to do?

The court is the ultimate decider of whether an alleged disabled person lacks the legal capacity to make decisions regarding their personal or financial welfare. The court must base its determination of disability, however, on supporting medical evidence from qualified health care providers.

To prove disability requires verified certificates that describe the medical or psychological diagnoses of the disability from:

two physicians OR
one physician and a psychologist or certified social worker-clinical (LCSW-C).

These certificates must be completed fully and completely since, in most cases, the court will decide based solely on the information contained in these certificates.

Read the rules: Md. Rules, Title 10, Chapter 200

The certificate must be in a specific form, as provided in the Maryland Rules. The following forms are available on the Maryland Courts website.

Read the rules: Md. Rule 10-202, Rule 10-301

Read the law: Md. Code, Estates and Trusts § 13-705

Note that certificates are not required for guardianships of the property where the alleged disability is detention by a foreign power, imprisonment, or disappearance.

Read the rule: Md. Rule 10-301(d)

Consider Alternatives

In Maryland, a guardian should only be appointed if there are no less restrictive alternatives. During the court guardianship proceeding, the court will need to determine that there is no less restrictive alternative available. So you should consider alternatives prior to beginning guardianship proceedings. Learn more about alternatives to guardianship.

Read the law: Md. Code, Estates and Trusts Article § 13-705

Source

Adapted from “Adult Guardianships,” by Angela Grau, Esq.; Updated by Web Services Librarian.