It is always heartbreaking when age, illness, injury or some other misfortune hinders someone’s ability to act on his or her own behalf. Aside from the emotional aspect, there are also practical concerns. When is intervention warranted? Who can or should become the decision-maker? Absent of any other alternatives, the legal appointment of a guardian is the only answer.
In Maryland, adult guardianship is the official legal process in which a court selects someone called a guardian to handle a disabled adult’s affairs. This is warranted when:
- A medical or mental health professional, or certified clinical social worker finds that someone is unable to make appropriate decisions regarding his or her personal or financial matters, as the result of physical or mental disability; and
- There are no legal mechanisms such as a power of attorney or healthcare power of attorney in place.
The court’s determination as to disability is made based on the testimony and evidence presented prior to and at trial. If it finds that the person is actually disabled, it will choose a guardian. The court will then issue an order naming that person to act as the guardian of the disabled person on its behalf.
Guardian of the person and guardian of the property
Depending on the circumstances, the court will appoint a guardian of the person, a guardian of the property, or one person to serve as both.
A guardian of the person handles a disabled adult’s daily needs. This generally includes the provision of food, clothing, housing and other necessities. It may also include the coordination of relevant services and care. This guardian will also engage in advocacy and act in the best interests of the disabled adult, as specified in the court order.
A guardian of the property handles the disabled adult’s financial affairs. Specifically, he or she may collect income, apply for benefits, manage property, and pay bills. While doing so, the guardian must act in the disabled adult’s best interests, and carry out all tasks in accordance with the court order.
Who can be a guardian?
Ideally, a friend, relative or someone else known to the adult will “petition” or ask the court to be appointed as guardian. To be considered, the petitioner must meet be legally classified as an “interested person.” This may be the disabled adult’s:
- Husband or wife
- Other persons and entities depending on the unique circumstances of the case
What is public guardianship?
Public guardianship is a program designed to help allegedly disabled adults who don’t have friends, relatives or anyone else to manage their affairs. In Maryland, local Departments of Social Services coordinate this program for adults aged 18-64, and the Department of Aging coordinates it for those aged 65 and older.
As part of the program, special groups comprised of relevant professionals and citizens review public guardianship cases twice per year. Based on their findings, these Adult Public Guardianship Review Boards make recommendations to the court. In turn, the court will continue, change, or end the guardianship.
Guardianship of a minor
This also a legal process conducted in Maryland courts. In this case, however, the court appoints one or more people to take charge of a minor’s personal and/or financial matters.
There are two things to keep in mind here. The first is that the court is the definitive guardian and as such, keeps an eye on the person or people named to act on its behalf. The second is that custody and guardianship are not one in the same. Therefore it is important that you consult an attorney about which is best in your situation.
Types of Guardians
As with adult guardianship, the court can appoint a guardian of the person or a guardian of the property for minors. The guardian of the person advocate for the minor and handle his or her routine needs in accordance with the court order. The guardian of the person handles applicable financial matters as specified in the court order.
Another similarity is that only petitioners legally classified as “interested persons” are considered for guardianship of a minor.
What happens in court?
The legal steps involved in assuming the guardianship of a minor child are not all that different from those involved in assuming the guardianship of a disabled adult.
Relevant testimony and evidence must be presented to the court prior to and at trial. Based on its review of the material, the court will determine if guardianship is warranted and if the person or people petitioning for guardianship are qualified to do so.
However, you should be aware that:
- It is important to get the parents’ consent if at all possible. Accordingly, you should make every effort to do so.
- If you are interested in assuming guardianship of more than one minor, you may have to file separate petitions for each one. An exception may be made if the minor children are full siblings facing similar circumstances. In such circumstances, the court would still issue a separate guardianship order for each minor.
- The legal paperwork is different.
Training and reporting requirements
In Maryland, all prospective guardians must complete an orientation. Completion of an online or traditional training program is also required for all appointed guardians of minor children.
But that’s not all. There are also ongoing reporting and recordkeeping requirements. These typically include initial financial filings and annual reports. You can find comprehensive information about these requirements on the Maryland Courts website. However, it’s also essential that you read and understand your guardianship order.
To learn more about guardianship in Maryland, contact attorney Janelle Ryan-Colbert, today (301)576-6200.