COVID-19 Information Update
On Monday, April 26, 2021, the Judiciary returned to Phase 5 of its Phased Reopening Plan. The courts are fully operational.
The Statement from the Maryland Judiciary Concerning Guardianships of Adults and Minors provides clarifications related to guardianship emergencies, expedited guardianship matters, and court-appointed guardians.
The Maryland Judiciary’s Guidance for Court-Appointed Guardians of the Person and Property provides guidance for court-appointed guardians about caring for the person under the guardianship during the COVID-19 emergency.
Topics on this page
- What is an adult guardianship?
- Types of Guardians
- When would an adult need a guardian?
- How does a court decide what to do?
- Consider Alternatives
What happens when someone becomes disabled and can no longer manage their personal and/or financial affairs? Perhaps that person has dementia, suffered a stroke, or has some other ailment or injury that renders that person unable to act. That person’s personal and/or financial affairs must be put in order and kept in order, so that the personal and/or financial needs of that person can be taken care of as long as possible.
Often, the answer to these questions is to initiate a guardianship proceeding on behalf of that disabled adult. Guardianship is a court proceeding. When an adult is unable to make personal decisions, such as medical decisions, or to handle his or her own property, a court can appoint a guardian.
Adult guardianship is a formal court process that is used to appoint someone (“the guardian”) to act on behalf of the court to manage a disabled person’s care or property. A guardianship proceeding is necessary when:
- a physician, psychologist, or certified clinical social worker determines that a disabled person is unable to make responsible decisions concerning his or her medical care or financial matters, usually because of a physical or mental disability; AND
- there are no alternatives to a guardianship available, such as a general financial power of attorney or a health care power of attorney.
A court will review the testimony and the evidence regarding whether a person is, in fact, disabled, and if so, will determine who should be the guardian. Then, the court will issue an appropriate court order appointing a person to serve as the guardian of the disabled person on behalf of the court.
In guardianship matters, a court assumes jurisdiction over a disabled person to protect that person who, because of illness or other disability, is unable to care for himself or herself. Thus, the court is actually the guardian. The court-appointed guardian serves as the court’s agent to carry out the court’s responsibilities. Read the various rules and requirements of guardians with this important point in mind.
Read the case: Kircherer v. Kircherer, 285 Md. 114 (Court of Appeals 1979)
Guardian of the Person – A guardian of the person takes care of the disabled adult's personal and physical needs. This includes providing for everyday needs, such as food, clothing, housing, health (e.g., consent to medical care and medical decisions), and social decisions (e.g., fostering and preserving family relationships). This can also include arranging for services and care for the disabled person (e.g., home health aide). The guardian of the person advocates for the disabled person and acts in their best interests. The court order will have specific information about the guardian’s responsibilities and powers.
Guardian of the Property – A guardian of the property manages the disabled person’s financial affairs and makes financial decisions that are in their best interests. Examples of financial decisions include collecting income, applying for benefits, managing property, and paying bills. The court order will have specific information about the guardian’s responsibilities and powers.
Guardian of the Person and the Property – The court can appoint one person to manage both the personal and financial affairs of the disabled person. The court can also appoint one person to manage the disabled person’s personal affairs and another person to manage the person’s financial affairs.
With our population living longer, there may come a time during an elderly person’s life when someone else may have to make decisions concerning his or her medical care or financial affairs. But at what point can a person no longer, legally, make those decisions? When is he or she legally “incompetent?”
Legal discussions on this issue refer to a person’s “capacity,” rather than “competence.” Mental capacity is one of the most difficult of legal questions because it is not easy to determine the point in the progress of a disease at which the faculties are so far impaired that they fall below the standard of legal capacity. Certainly, the mere diagnosis of a disease is not sufficient, in and of itself, to prove that a person lacks the legal capacity to make his or her own decisions. For example, a person may have a diagnosis of Alzheimer’s disease, but still have sufficient capacity to pay bills in a timely manner.
Guardian of the Property: A court will establish a guardianship for a person’s property when it can be shown that a person has or may be entitled to property or benefits that require proper management and is unable to effectively manage that property because of a physical or mental disability or disease (or in several other specific circumstances). When there is a medical condition present, this standard can usually be met by merely showing that a person can no longer balance a checkbook, pay household bills, or handle mail responsibly. At that point, the court can appoint a guardian to act on behalf of the court to manage a disabled person’s property. However, you must still show the court that there are no less restrictive alternatives available.
Read the Rules: Md. Rules, Title 10, Chapter 300
Guardianship of the Person: A person is legally disabled (or lacks legal capacity) when he or she lacks sufficient understanding or ability to make or communicate responsible decisions concerning himself or herself, such as provisions for health care, food, clothing, or shelter. The disability can be because of:
- mental disability
- habitual drunkenness
- addiction to drugs,
Establishing a guardianship of a person will be necessary in two primary situations:
- Where the alleged disabled person failed to execute a health care power of attorney and certain medical procedures are necessary that require consent.
- When more than one person in the family wants to care for an alleged disabled person, and the family is unable to resolve this conflict on its own.
Read the Rules: Md. Rules, Title 10, Chapter 200
The court is the ultimate decider of whether an alleged disabled person lacks the legal capacity to make decisions regarding his or her care or finances. The court must base its determination of disability, however, on supporting medical evidence from qualified health care providers.
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. These certificates must be completed fully and completely since, in most cases, the court will make a decision based solely on the information contained in these certificates.
Read the rules: Md. Rules, Title 10, Chapter 200
The certificate must be in a specific form, as provided in the Maryland Rules. The following forms are available on the Maryland Courts website.
- Physician's Certificate (CC-GN-019)
- Psychologist's Certificate (CC-GN-020)
- Licensed Certified Social Worker-Clinical (LCSW-C) Certificate (CC-GN-021)
- Nurse Practitioner's Certificate (CC-GN-050)
Read the law: Md. Code, Estates and Trusts § 13-705
Note that certificates are not required for guardianships of the property where the alleged disability is detention by a foreign power, imprisonment, or disappearance.
Read the rule: Md. Rule 10-301(d)
In Maryland, a guardian should only be appointed if there are no less restrictive alternatives. During the court guardianship proceeding, the court will need to determine that there is no less restrictive alternative available, so you should consider alternatives prior to beginning guardianship proceedings. Learn more about alternatives to guardianship.
Read the law: Md. Code, Estates and Trusts Article § 13-705