When a person is no longer able to care for their own personal and/or financial affairs – for example, an elderly parent becomes too mentally confused or forgetful to be safely left on their own – a Legal Guardian, in some states referred to as a conservatorship, may be court appointed to fulfill these duties. Legal guardianship is most often utilized for incapacitated seniors or adults with disabilities. There is also legal guardianship of minor children, which is not addressed in this article.
The guardian, typically a family member or friend, assumes all (or some) decision-making authority over the other person, called a ward. In certain emergency situations where an individual has no family or friend to serve as guardian, a court may appoint a public guardian.
What Are the Duties of a Legal Guardian?
A legal guardian has the right to make certain decisions on behalf of their ward and, in some cases, also has physical custody of the ward. The guardian’s decision-making responsibilities may include:
- Financial Decisions: The legal guardian is responsible for 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. 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.
- Medical Decisions: The legal guardian is responsible for decisions regarding medical care or treatment. 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.
- Personal Decisions: The legal guardian is responsible for basic needs such as clothing, housing, food, transportation, educational needs, and more.
There are different types of guardianship, as well, and these vary by state. But the most common types include:
- Guardianship of the Person and Property: Guardianship of the Person and Property may be referred to as “Full Guardianship as the guardian has complete decision-making authority over another person. This includes financial, legal, healthcare, and personal affairs.
- Limited Guardianship: A limited guardian has decision-making authority over selected needs.
- Joint or Co-Guardianship: Joint or co-guardians share decision-making authority over another person.
- Short-Term or Temporary Guardianship: When the ward 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.
- Guardianship of the Property: This is when a guardian is primarily tasked with overseeing the ward’s financial decisions.
- Guardianship of the Person: This is when the guardian is primarily tasked with caring for the wards healthcare and personal affairs.
All guardians, no matter the type, have a fiduciary duty to their ward, meaning they have a legal mandate to perform in an honest and responsible manner. Furthermore, the guardian of property must maintain accounts for the ward separate from their own.
How Serious is Guardianship?
The appointment of a legal guardian 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. This loss of personal freedom can be quite hard and often strain the relationship between the guardian and ward. This is why guardianship should only be sought as a last resort, when there are no less restrictive solutions available.
How Long Can Guardianship Last?
As you can see in the above examples, there are instances where guardianship is not permanent. Short-term or temporary guardianships, for example, are limited to a specific period of time and will end automatically. Ultimately, the length of guardianship is dependent on the court’s opinion as to what’s in the best interests of the ward. At any point during a guardianship, especially when dealing with short-term or temporary guardianship, the ward may petition the court to end the guardianship if they feel the situation is no longer necessary. The guardianship may also end or a new guardian may be appointed if the court determines the guardianship is no longer necessary, the legal guardian becomes incapacitated and unable to fulfill their duties, the legal guardian resigns, or if the ward passes away.
Petitioning for Legal Guardianship in Maryland
The process for obtaining a guardianship varies by state. In Maryland, to pursue legal guardianship, an action needs to be filed with the Circuit Court of Maryland in the jurisdiction where the person resides or is institutionalized. The court conducts a hearing where evidence is presented to establish whether guardianship is necessary and whether the proposed guardian is capable of serving in this role. 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. While you may be able to complete some of the documents or forms on your own, it is always best to talk to an experienced attorney when planning the future of a loved one to ensure the ward’s best interests are always taken into consideration. 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 Guardian Services in Maryland
PathFinder Law Group is a law firm located in Towson, Maryland specializing in estate planning, elder law, estate and trust administration, special needs planning and trusts, and guardianship. We are here to guide you through life’s milestones in a way that is compassionate and reassuring.
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.
Our team can assist clients in filing petitions for incompetence and the appointment of a guardian. Once the guardian is appointed, we 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 (410) 296-6777 or email firstname.lastname@example.org. Our team provides legal guidance that comes from the heart and our solutions are tailored to fit your individual needs.