Topics on this page
- General
- Who may file?
- Venue - Where should the petition be filed?
- Contents of the Petition
- Certificates of Competency
- Show Cause Order
- Appointment of Counsel
- Pre-Hearing Statement
- Appointment of Investigator
General
When someone becomes disabled and can no longer manage their personal or financial affairs, an individual may seek an appointment as a guardian. Establishing a guardianship involves a formal legal process that begins with filing a petition for guardianship. The individual who petitions the court for guardianship (the “Petitioner”) must provide evidence of the person’s incapacity and demonstrate the need for a guardian to make decisions on their behalf.
Note that a person for whom guardianship is being requested is always an “alleged” disabled person until the court determines the person to be disabled. Until the court confirms disability based on medical evidence or opinions, the individual remains presumed to have capacity. If the court determines that guardianship is necessary, the court will appoint a guardian and outline the terms of the guardianship through an official order.
Who may file?
The Petitioner must be an “interested person.” An interested person is someone who is affected when the court appoints a guardian for another person, or anybody who has assumed responsibility for the disabled person. This can be relatives or government agencies paying benefits to the disabled person. Learn more about interested persons.
Read the law: Md. Code, Estates and Trusts Article § 13-101
Read the rules: Md. Rule 10-103
Venue - Where should the petition be filed?
A petition for guardianship should be filed in Maryland Circuit Court. The Circuit Court in which the petition should be filed depends on:
- whether the alleged disabled person is a resident of Maryland; and,
- the type of guardianship requested in the petition.
Filing a Petition for Guardian of the Person
Is the alleged disabled person a resident of Maryland?
Yes - the petition should be filed in the Circuit Court in the county where the disabled person resides. Alternatively, if the disabled person is hospitalized, the petition may be filed in the county where the individual is receiving medical care.
No - the petition can be filed in the county where the individual is currently located.
Filing a Petition for Guardian of the Property
Is the alleged disabled person a resident of Maryland?
Yes - the petition should be filed in the county where the person resides, even if the person is temporarily absent.
No – the petition may be filed in the county where the petition for guardianship of the person may have been filed. A petition for guardianship of property can also be filed in the county where any part of the disabled person’s property is located.
NOTE: Although they do not have to be, guardianships of person and property are often sought in the same petition.
Read the rules: Md. Rules 10-201 and 10-301
Contents of the Petition
The Maryland Rules provide the form, instructions, and contents of the guardianship petition. The form, instructions, and contents are reflected in the Petition for Guardianship of Alleged Disabled Person (CC-GN-002) court form. Additional Guardianship court forms are available on the Maryland Courts website.
NOTE: If guardianship of more than one alleged disabled person is sought, a separate petition must be filed for each alleged disabled person.
The petition must contain detailed information about the Petitioner, the alleged disabled person, and all other interested persons. The Petitioner is the person asking the court to appoint a guardian for the alleged disabled person. The “alleged disabled person” is the person for whom the Petitioner is asking the court to appoint a guardian to manage their personal and/or financial affairs. An “interested person” is someone who is affected when the court appoints a guardian for another person, or anybody who has assumed responsibility for the disabled person. This can be familial relatives or government agencies paying benefits to the disabled person. If the Petitioner is not seeking appointment as guardian, the petition should include information on the prospective guardian.
The petition must also generally provide:
- description of the nature of the disability;
- how the disability affects the alleged disabled person’s ability to function; and,
- why a guardian should be appointed.
The Maryland Rules specifically require a Petitioner to provide detailed examples supporting each element necessary to establish a guardian of the person or property. For instance, if they're asking to oversee the person's well-being, they need to explain why that person can't make important decisions for themselves. Similarly, if they're asking to manage the person's money or property, they need to show why the person can’t handle it on their own. Also, they have to talk about any other options they've tried before going for guardianship and explain why those didn't work out.
While not specifically required by rule, it may be a good idea for the Petitioner to include a detailed background of what's happened before they decided to ask for guardianship. Think of it like telling a story to the court. This is especially important if complicated things are going on, like serious health problems, family arguments, or if it seems like there might be disagreements about what should happen. Providing a detailed history can set the stage for the court and can also protect the Petitioner from accusations of having filed a proceeding in bad faith. This strategy may also ultimately be helpful in assisting the Petitioner in recovering their legal fees from the guardianship estate.
A petition must also disclose if the guardian or conservator (guardian of the property) has been appointed for the disabled person in another proceeding, or if a document nominates a guardian. If the alleged disabled person has a lawyer, the petition must include the lawyer's name and address. If the alleged disabled person does not have a lawyer, the court may appoint one for them.
If a guardianship over property is sought, the petition should include a list of the disabled person’s assets and their worth.
In addition to completing the guardianship form, Maryland Rules require the petitioner to include specific exhibits with the petition. The required exhibits are as follows:
- A copy of any instrument nominating a guardian.
- A copy of any power of attorney (including a durable power of attorney for health care) which the alleged disabled person has given to someone.
- A copy of any written supported decision-making agreement.
- Signed and verified certificates of competency.
Read the rule: Md. Rules 10-112, 10-201, 10-301
Certificates of Competency
The guardianship petition must include two certificates from healthcare professionals who have examined or evaluated the alleged disabled person certifying that the person is, in fact, disabled and in need of a guardianship. The certificates may be obtained from:
- Two licensed physicians; OR
- One licensed physician AND one licensed psychologist, licensed certified social worker–clinical, or nurse practitioner
Each certificate must state:
- the name, address, and qualifications of the person who performed the examination or evaluation;
- a brief history of that person’s involvement with the disabled person;
- the date of the last examination or evaluation of the disabled person; and,
- the person’s opinion as to:
- the cause, nature, extent, and probable duration of the disability;
- whether institutional care is required; and,
- whether the disabled person has sufficient mental capacity to understand the nature of a guardianship and be able to consent to it.
These certificates can serve as proof of disability during a guardianship hearing. The court can accept the certificates as evidence without needing the certifying healthcare professional to be present or testify unless an interested party files a request for testimony in court. Typically, these certificates are the primary evidence the court uses to decide whether to appoint a guardian.
At least one examination or evaluation must occur within 21 days before the date the petition is filed. The Maryland Courts website provides a separate form for certificates from a physician, psychologist, and licensed certified social worker clinical (LCSW-C). If you are unable to have the alleged disabled person evaluated because the disabled person is under the control of a person who has refused to permit examination, you can ask the court to order one.
Read the rules: Md. Rules 10-202; 10-205(b)
Read the law: Md. Code, Estates and Trusts § 13-705
Show Cause Order
After the petition is filed, the court will issue a “Show Cause Order.” This order requires the alleged disabled person, via their lawyer and any other interested person or agency, to respond to the petition. The response must be filed within a certain period of time, usually around 20 days after they are provided with a copy of the order. The Show Cause Order will also set a date and time for a court hearing on the guardianship petition.
The petitioner is responsible for making sure that the alleged disabled person, their attorney, and all interested persons are served with a copy of the Show Cause Order within the time identified by the court in the Order. A copy of the guardianship petition, physician’s certificates, and other required documents must also be served with the Show Cause Order.
Read the rule: Md. Rules 10-104, 10-203, and 10-302
Appointment of Counsel
After a petition for guardianship of the person and/or property of an alleged disabled person is filed, the court will appoint an attorney for the alleged disabled person, if an attorney of their choosing does not already represent them. This is required to ensure that the individual’s due process rights are not violated during the guardianship proceedings, particularly since the alleged disabled person faces significant and usually permanent loss of their basic rights and liberties. Learn more about the role and responsibility of the appointed counsel.
Read the Code: Md. Code, Estates and Trusts Article § 13-211 and § 13-705
Read the rule: Md. Rule 10-106, Maryland Guidelines for Attorneys Representing Minors and Alleged Disabled Persons in Guardianship Proceedings
Pre-Hearing Statement
The court may issue an order directing the parties, and interested persons who have responded to the petition or show cause order, to file a brief pre-hearing statement. This pre-hearing statement is limited to the following topics:
- Hearing Attendance by the Alleged Disabled Person – Will the alleged disabled person attend the hearing in person or by remote electronic participation. Are special accommodations needed to facilitate hearing attendance? If the alleged disabled person is not attending the hearing, then why not? Note that the responses to these questions are subject to the attorney-client privilege.
- Jury Trial – Does the alleged disabled person waive the right to a jury trial?
- Stipulations and Limitations - Is there a stipulation or limitation of any issue? A stipulation is an agreement between the parties about certain facts or issues.
- Party Positions - What is the party or interested person’s position on:
- the need for guardianship;
- less restrictive alternatives to guardianship or limitations on the powers to be granted to the guardian;
- designation of the proposed guardian and any issue related to the proposed designation;
- the identity of any interested person not previously identified in a pleading or paper filed in the action, the relationship of that person to the alleged disabled person, and any issue relating to the designation of, or service upon, the interested person,
- the description, location, and value of any property, including any property not previously identified in a pleading or paper filed in the action; and
- expert testimony.
- Scheduling Concerns – Are there any special scheduling concerns other than those related to an expedited hearing concerning a medical treatment (this is covered by Md. Rule 10-201(f))?
- Existing Documents - Is there an existing power of attorney, advance health care directive, or other similar document?
- Mediation – Would mediation be helpful? If so, what issues should be included in the mediation?
- Independent Investigator - Should an independent investigator be appointed? If so, for what purpose? (See below for information about the appointment of an independent investigator.)
The court order will include the date by which the pre-hearing statement must be filed with the court.
Real the rule: Md. Rule10-106.1
Appointment of Investigator
The court may appoint an independent investigator to investigate the facts of the case and report to the court. This investigator does not advocate for the alleged disabled person or any other party to the proceeding. The fee of a court-appointed investigator is paid from the guardianship estate, or otherwise as the court directs.
Read the rule: Md. Rule 10-106.2