Guardianship of the Person in Maryland

Guardianship in Maryland, sometimes referred to as a conservatorship, can take several forms, but most common are Guardianship of the Property, Guardianship of the Person, Guardianship of the Person and Property, and Short-Term or Temporary Guardianship. In this article, we are going to explore the topic of Guardianship of the Person – what it is, what specific duties are involved, who can serve as legal guardian, and how to petition the court for guardianship in Maryland.

What is Guardianship of the Person?

A guardian of the person is responsible for making decisions regarding the health and well-being of another person, called a ward. In various documents, the ward may also be referred to as the “disabled person,” “disabled adult,” “ward,” an “incapacitated person,” a “person under guardianship,” or a “vulnerable adult.” This is different from a guardian of the property, who is responsible for making the ward’s financial decisions. In some situations, the ward may need assistance with their day-to-day decisions, but may remain capable of managing their own financial  affairs. This bifurcated process allows for a more personalized assistance and support plan that leaves some of the ward’s decision-making powers intact. 

What Are the Specific Duties of a Guardian of the Person?

While no two guardianship cases are ever exactly alike, the guardian’s responsibilities and powers can include managing everyday needs, such as the ward’s food, clothing, housing, healthcare, and even social decisions. The legal guardian acts as an agent of the court, and the guardian’s exact powers and duties are laid out in the court’s Guardianship Order. These can include the authority to:

• Determine Living Situation: Determining the best place for the ward to live based on their needs and wishes. Options can include living with a relative or friend, assisted living facilities, group homes, or a long-term care facility.
• Provide Personal Care: Taking care of the disabled ward’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.
• 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.

When making decisions on behalf of the ward, the guardian must follow a four-phase decision-making standard or thought process. This is designed to help the guardian thoughtfully examine a situation and consider every angle before making a decision.

1. Substituted Judgment: Make a decision based on what the ward would do if they had the ability to make their own decisions.
2. Best Interest: Make a decision based on the option with the most benefit and the least harm.
3. Least Restrictive Alternative: Make a decision that meets the ward’s needs and places the fewest restrictions on dignity and independence.
4. Informed Consent: Before you make a decision, you should first understand the purpose, risks, benefits, and alternatives.

For actions that may be extraordinary, the guardian must receive approval from the court to: perform any action not authorized in the Guardianship Order; to move the ward from one type of housing or from one jurisdiction to another; to commit the ward to a mental institution; or to start, stop, or withhold medical treatment that would involve a substantial risk to the ward’s life.

Furthermore, the guardian is required to file an Annual Report of Guardian of Disabled Person each year within 60 days of the anniversary of the appointment date. This document is used to ensure the guardian is performing their duties as ordered by the court and to monitor the residence and well-being of the ward. Failure to file the annual report could result in the guardians removal.

Who Can Become a Guardian of the Person?

When a person is no longer able to care for their own personal and/or financial affairs, the court may appoint a legal guardian to fulfill these duties. Entering into a guardianship should not be taken lightly. It’s a challenging job and can have a profound effect on both the ward’s and guardian’s daily lives. The guardian assumes all (or some) decision-making authority over the ward.

Legal guardians appointed by the court are typically family members or friends of the ward. However, there are circumstances when the court may appoint a public guardian, such as an attorney or representative from a local government mental health or social services agency.

Petitioning for Guardianship of the Person in Maryland

Anyone who petitions a court for guardianship must be an interested person as defined under law (Md. Code, Estates and Trusts Article § 13-101). This individual (the Petitioner) will file a petition with a Maryland circuit court in the jurisdiction where the “alleged disabled person” resides. The petition should “tell a story.” It should include detailed information about the Petitioner, the alleged disabled person, the alleged disabled persons disability and its effect on their daily life, and any other interested persons. The petition should also include:

1. Description of the nature of the disability
2. Specific examples of the disabled person’s inability to make responsible decisions concerning their person
3. A detailed timeline of events leading up to the petition
4. Why a legal guardian should be appointed
5. Two certificates from health care professionals certifying that the alleged disabled person is in need of guardianship

After a petition is filed, the court will then conduct a hearing to determine whether or not guardianship is necessary. If the court determines that guardianship is the best course, it will issue an order outlining the terms and conditions of the appointment. The court may ultimately appoint a legal guardianship for the person, property (fiduciary), or both the person and property.

If the petition for guardianship is contested, the matter will go to trial. The petitioner and their attorney will need to present evidence of the ward’s lack of capacity to make personal decisions, as well as evidence that supports the petitioner’s ability to serve as guardian.

Legal Guardianship Services in Maryland

If you are considering a petition for guardianship, you should first consult with a qualified guardianship attorney, like PathFinder Law Group. Located in Towson, Maryland but servicing all of Maryland, we specialize in estate planning, elder law, estate and trust administration, special needs planning and trusts, and guardianship. We can help you in filing petitions for guardianship, as well as better understanding the guardianship process overall, which can vary slightly from county to county.To contact PathFinder Law Group about your planning needs, please complete our Contact Us form, call (443) 579-4529  or email staff@pathfinderlawgroup.com. We are here to guide you through life’s milestones in a way that is compassionate and reassuring.