When an adult has not prepared a proper advanced medical directive and/or power of attorney, guardianship is the next available option. Guardianship is also sought when a minor child inherits money or obtains assets in any way. It’s not simple to arrange, usually requires a lawyer, and needs a judge’s approval. But it might help solve the huge problem of who makes major decisions that involve the disabled adult when he or she can’t do so him/herself, and there aren’t enough other written directions.
Guardianship is a legal procedure by which a court seeks “to protect those who, because of illness or other disability, are unable to care for themselves.” The statute uses the term “disabled person” to refer to an adult who has been judged by a court “to be unable to manage his property,” and therefore needs a guardian of the property, or “to be unable to provide for his daily needs sufficiently to protect his health or safety,” and therefore needs a guardian of the person.
Types of Guardianship
Someone appointed to make decisions about medical care and other aspects of personal life—for example, where one should live—is called a “guardian of the person.” A guardian of the person may employ and discharge a disabled person’s health care providers; make discharge and transfer decisions from a hospital or related institution; and consent to the provision, withholding, or withdrawal of health care (including, under circumstances specified in the statute, life-sustaining procedures). Someone appointed to decide about finances is usually called a “guardian of the property.” A guardian of the property may, among other things, retain assets, sell property, borrow money, negotiate with creditors, perform contracts, and pay claims. These powers are to be exercised “for the best interest of the ... disabled person ....” Hence, a guardian of the property owes a fiduciary duty to the disabled person and must act in an honest and good faith manner to preserve the disabled person’s assets. If both are needed, a court may appoint the same person to do both jobs.
When the petition for guardianship is filed, the court normally appoints an attorney to represent the disabled (to the extent he/she does not have one). This person, by law, must act as an advocate for the disabled and is not merely a dispassionate neutral party. At this point, there normally is a deadline by all “interested persons” (i.e. normally immediate family members) to file a response to the initial petition voicing any opposition. The opposition may be about many things and is not necessarily just regarding who is to be appointed. If there is any opposition regarding whether a guardian should be appointed, who should be appointed as guardian, or there is an issue regarding the duty or rights of a guardian, the matter turns into a contested guardianship. If there is no opposition, the matter is an uncontested guardianship.
As a prerequisite to a judicial determination of guardianship, Maryland law requires adherence to detailed procedures for notice and a hearing, designed to protect an individual’s due process rights. The heart of a petition for guardianship of the person is a statement of the “reasons why the court should appoint a guardian ..., allegations demonstrating an inability of [the] person to make or communicate responsible decisions concerning ... health care, food,clothing, or shelter, ... and a description of less restrictive alternatives that have been attempted and have failed.” If the alleged disabled person lacks counsel, the court appoints an attorney for that purpose. The alleged disabled person has a right to be present at a hearing, unless unwilling to attend or upon a showing of good cause, and, through the attorney, to present evidence and cross-examine witnesses. A guardianship order may be entered only if the court finds that it is justified by clear and convincing evidence.