The following information is adapted from The Guardianship Handbook published by the University of Maryland School of Law.
Adult guardianship is a legal procedure in which a court determines that a person is incapable of making decisions because of severe disabilities, and that the person is in need of protection. The person may be too mentally confused or forgetful to make decisions about medical treatment or to obtain appropriate food and shelter.
This condition is called "disability". If the court finds a person to be unable to make decisions due to a disability, it will appoint someone to act on behalf of the disabled person, making decisions about the individual's person, property or both.
Using poor judgment or being eccentric does not mean a person is incompetent. To fit the legal definition, the inability to make reasonable decisions must be the result of a mental or physical disease or disability.
The court determines disability if:
- Two physicians (or one physician and one psychiatrist) have determined, in writing, that a person is unable to make or communicate responsible decisions
- The person is in need of protection
- There are no less restrictive measures to allow for decision making
The court appoints a guardian of the person if the court finds by clear and convincing evidence that an individual is incapable of making or communicating decisions regarding his or her person, giving informed consent for treatment, or making decisions about where he or she will live. The guardian of the person has the same rights and duties that a parent has over a minor child.
The guardian has a duty to provide care and comfort for the individual, including looking after medical, social, recreational and friendship needs. The guardian of the person may file an annual report describing the disabled person's circumstances over the past year.
The court may give a guardian of the person the authority to make all decisions for the person or it may outline specific authority of the guardian. The individual retains the right to make decisions over anything for which the guardian is not responsible.
Process of Obtaining a Guardian of Person
An attorney, hired by a family member, friend or other interested party (such as the local Department of Social Services), must file a petition with the court and provide evidence from physicians, family or friends that the individual is in need of a guardian.
Another attorney is appointed by the court to meet with the individual being considered for guardianship. This attorney, the Attorney for the Disabled, represents the individual to the Court. In addition, the Attorney for the Disabled may be required to make a report to the court giving his or her opinion about whether a guardian is needed. The role of the Attorney for the Disabled, under Maryland law, is to provide legal protection for the disabled person.
Standards of Decision Making
A guardian should be guided by the two standards of decision-making identified in the law:
- Substituted Consent: Making a decision based on the individual's wishes, as you know them. It is important, whenever possible, for the guardian to use substituted consent. At times, older persons have discussed their feelings regarding medical treatment with family and friends. If the individual’s feelings are known, the guardian can support that view and make the decision that the individual would have made.
- Best Interest: Use the standard of best interest when the guardian is not aware of the individual's wishes, that is, the guardian should look at the pros and cons of the procedure or situation and determine what is in the individual’s best interest.
Special Permissions from the Court
The guardian of the person must seek special permission from the court to:
- Move the individual from a private home to a nursing home, or from an assisted living facility to a nursing home unless such authority to move the person (called changing the abode) was granted in the original guardianship order.
- Consent to or withhold consent to medical treatment that poses a substantial risk to the life of the disabled person.
There are times when the guardian of the person does not have to return to court in these circumstances; these include:
- When the court has given authority to make life-sustaining medical treatment decisions in advance because the disabled person has executed an advance directive that allows the guardian to make such decisions
- When the guardian is the spouse, adult child, parent or sibling of the disabled person. This is because under the Health Care Decisions Act, these relatives would have the authority to make life-sustaining treatment decisions as a Surrogate Decision Maker even if there was no guardian.
Public Guardianship of Person
A public guardian is appointed only when there is no family member or friend able and willing to function as a guardian of person. If the disabled person is younger than 65 years old, the director of the local Department of Social Services is appointed guardian of the person. If the disabled person is 65 years or older the director of the local agency on aging is appointed guardian. (In Baltimore County this agency is the Baltimore County Department of Aging.)
A public guardian has the same authority as the private guardian of the person. In addition, the public guardian reports to the Adult Public Guardianship Review Board twice a year. The purpose of the board is to ensure that the public guardian is doing a good job for the disabled person.
The court will appoint a guardian of the property if it finds by a preponderance of the evidence that a person is disabled and unable to manage his or her money—pay bills, understand contracts, and generally manage his or her finances.
A guardian of the property must act as a fiduciary of the disabled person. A fiduciary is someone who can be trusted to act in the best interest of the disabled person. The guardian must act honestly and faithfully to preserve the disabled person's property and to use the assets for the benefit and welfare of the person.
Scope of Authority
A guardian of the property has broad powers to handle the assets and income of the disabled person. This includes, but is not limited to:
- Collecting all money due to the disabled person
- Opening and closing bank accounts
- Paying bills
- Filing tax returns
- Selling real estate
- Investing in stocks or bonds
- Borrowing money to make repairs to a home
If there is no family member or friend able or willing to function as guardian of property, the court will appoint an appropriate individual, usually an attorney, as guardian of property.
Reporting to the Court
A guardian of the property must file an inventory of all property within 60 days of being appointed guardian. He or she must file an annual accounting each year. When the disabled person dies, the guardian must file a final accounting and a petition asking the court to terminate the guardianship.
The guardianship statute provides that the guardian of the property can receive a fee for services provided each year. The fee the court allows is a percentage of the guardianship estate. The guardian must file a request with the court in order to be allowed to collect a fee.
Alternatives to Guardianship
Guardianship is the most restrictive form of decision-making available. A person under guardianship can no longer make basic decisions about his or her life. If the situation truly warrants guardianship, it is important to proceed with this step. However, it is best to review all available options first.
One alternative to guardianship is to convince the disabled person to make a change voluntarily (e.g. accepting a case worker to help plan services needed or obtaining needed in-home services).
If an individual is able to understand and execute a legal document, there are other alternatives: