In the state of Maryland, guardianship, called conservatorship in some states, refers to a court-appointed individual or entity responsible for making some or all personal and/or financial decisions for another person, either a legally defined “disabled person” or a minor. The disabled person may also be referred to as a “disabled adult,” “ward,” an “incapacitated person,” a “person under guardianship,” or a “vulnerable adult.” A legal guardian, also known as a conservator, is most often utilized when a person is unable to care for themselves because of age, disease, or disability. Legal guardianship of minor children is not addressed in this article.
Entering into a guardianship should not be taken lightly. It’s a challenging job and can have a profound effect on the ward’s daily life. They may no longer have any authority to make their own decisions regarding their personal life, property, or finances. So, it’s important to fully understand the intricacies of guardianship before petitioning the Circuit Court for the state of Maryland.
What Are the Duties of a Legal Guardian?
The guardian assumes all (or some) decision-making authority over their ward. The guardian’s decision-making responsibilities may include Financial Decisions such as paying bills and taxes, applying for governmental benefits, managing both personal and real property, and managing the ward’s bank accounts, stocks and bonds, trusts, and other financial decisions. The guardian may also be responsible for Medical Decisions. The guardian has the power to consent to the provision, withholding, or withdrawal of healthcare; employ and discharge healthcare providers; and make discharge or transfer decisions from a hospital or similar institution. Finally, a guardian can also be responsible for Personal Decisions such as clothing, housing, food, transportation, educational needs, and more. In some cases, the guardian has physical custody of the ward, as well.
All guardians have a fiduciary duty to their ward, meaning they have a legal mandate to perform their duties in an honest and responsible manner and to act in the best interest of the ward.
Who Can Serve As a Legal Guardian?
Those appointed by the court to serve as guardians are typically family members or friends of the ward. However, this is not always the case. The court will try to do what’s in the best interest of the ward. In certain situations, the court may appoint a public guardian, such as an attorney or representative from a local government mental health or social services agency.
What Are the Types of Guardianship?
There are different types of guardianship and these vary by state, but the most common types include:
Guardianship of the Property (Fiduciary)
A guardian of the property manages the ward’s financial affairs. The legal guardian is charged to “exercise the care and skill of a [person] of ordinary prudence dealing with his own property.” In layman’s terms, this means the guardian should manage the ward’s finances wisely and with the same care that they manage their own finances.
The court order will have specific information about the guardian’s responsibilities and powers. These can include:
- Day-to-Day Financial Management: Paying the ward’s bills, as well as paying for transportation, clothing, housing, support, care, protection, welfare, and rehabilitation of the disabled person.
- Collect Income: Collecting any monies owed to the disabled person, including rents, pensions, Social Security, etc.
- Managing Property: Managing the ward’s property, including any rental properties.
- Paying Taxes: Preparing and filing the ward’s taxes annually.
- Financial Planning: Ensuring the ward’s estate can cover their current and future needs. This may include the hiring of accountants, financial advisors, or other professionals.
In Maryland, a guardian of a property is required to file an inventory of all property within thirty (30) days of appointment, and then file an annual accounting thereafter. Furthermore, for estates with a value greater than $10,000, the court may order the guardian to pay a bond with the court as an assurance against the mishandling of funds. The guardian of property must also maintain accounts for the ward separate from their own.
If the guardian fails to meet these standards, they can be removed as guardian, sued, or have to repay the estate any money lost or mismanaged.
Guardianship of the Person
A guardian of the person is primarily tasked with caring for the wards healthcare and personal affairs. This includes everyday needs, such as food, clothing, housing, healthcare, and even social decisions. The court order will have specific information about the guardian’s responsibilities and powers. These can include:
- Provide Personal Care: Taking care of the disabled person’s food, clothing, social, recreational, and training or educational needs, as well as their vehicle. This includes taking steps to protect the disabled person’s property if needed.
- Determine Living Situation: Determining the best place for the disabled person to live based on their needs and wishes.
- Provide Medical Consent: Giving consent or approval for medical care, treatment, or counseling.
- Arrange Funding & Services: Requesting funds from the guardian of the property (if separate from the guardian of the person) for the ward’s care, comfort, and maintenance. The guardian can also pursue government or private services and resources that promote the independence, well-being, and safety of the disabled person.
Guardianship of the Person and Property
In certain situations, the court may appoint a single person to manage both the ward’s personal and financial affairs. This is why guardianship of the person and property is sometimes referred to as “Full Guardianship.” The guardian has complete decision-making authority over another person, including financial, legal, healthcare, and personal affairs.
In some situations, the court may appoint one person to manage the ward’s personal affairs and another to manage their person’s financial affairs.
Short-Term or Temporary Guardianship
When a person is facing an emergency situation and is temporarily unable to make decisions on their own behalf, a short-term or temporary guardian may be court appointed to make necessary decisions for a period of time. The guardian is typically a family member or close friend. However, the court has the option to appoint a public guardian in emergency situations when an individual has no family or friend to serve as guardian.
The primary difference between guardianship and temporary guardianship is the length of time it remains in place. A guardianship is usually indefinite, though the ward may petition the court at any point to end the guardianship if they feel the situation is no longer necessary. A temporary guardianship, meanwhile, typically ends after a set date. Once the guardianship is terminated, the ward is once again in full control of their personal and/or financial decisions.
The length of the temporary guardianship varies by state, but usually ranges from 60 days to 6 months depending on the individual’s unique situation.
How Do You Establish Guardianship in Maryland?
Establishing a guardianship is a formal legal process. It is initiated when someone files a petition with a Maryland circuit court in the jurisdiction where the “alleged disabled person” resides. The petitioner must be an interested person as defined by Maryland law (Md. Code, Estates and Trusts Article § 13-101). Once the petition is filed, the court conducts a hearing where evidence is presented to establish whether guardianship is necessary. To prove disability, two physicians OR one physician and a psychologist or certified social worker-clinical (LCSW-C) must provide to the court verified certificates that describe the medical or psychological diagnoses of the disability (Md. Rules, Title 10, Chapter 200). If the court determines the person is disabled, the court will appoint a legal guardian, most often an interested person, and issue an order setting out the terms and conditions of the appointment. The court may ultimately appoint a legal guardianship for the person, property, or both.
Legal guardianship is a serious matter and you should first consult with a qualified guardianship attorney before taking any steps.Here are a few examples of when you should consult with your guardianship and conservatorship attorney:
- You have a loved one that has become incapacitated and can no longer make sound personal and/or financial decisions.
- You are related to a minor that has aging parents who have become incapacitated and can no longer make sound personal and financial decisions.
- You have been served as an interested person as part of an incompetency proceeding and are interested in challenging the petition.
Your attorney will help you better understand the guardianship process, which may vary slightly from county to county in Maryland. Additionally, your attorney can represent you in court as needed.
Legal Guardianship Services in Maryland
Located in Towson, Maryland, PathFinder Law Group specializes in estate planning, elder law, estate and trust administration, special needs planning and trusts, and guardianship. We can assist clients in filing petitions for incompetence and the appointment of a guardian. While you may be able to complete some of the documents or forms on your own, it is always best to talk to consult an experienced attorney when planning the future of a loved one.
Once the guardian is appointed, PathFinder Law Group can help with the court filings and bond renewals as needed. We can also represent a person served with an incompetency proceeding who is interested in challenging the petition. To contact PathFinder Law Group about your planning needs, please complete our Contact Us form, call (443) 579-4529 or email email@example.com. We are here to guide you through life’s milestones in a way that is compassionate and reassuring.