Maryland Legal Guardianship for Disabled Adults

When a "Guardian of the Person" Can be Appointed in Maryland

Under Maryland law the court shall appoint a guardian of the person if the court determines, from clear and convincing evidence, that

1. an individual lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his or her person, including provisions for health care, food, clothing, or shelter,
2. because of any mental disability, disease, alcoholism or drug addiction, and
3. no less restrictive form of intervention is available which is consistent with the person’s welfare and safety.

When a “Guardian of the Property” Can be Appointed in Maryland

Under Maryland law the court shall appoint a guardian of the property if the court determines that

1. the person is unable to manage his or her property and affairs effectively
2. because of disability, disease, alcoholism or drug addiction, imprisonment, or disappearance, and
3. the person has or may be entitled to property or benefits which require proper management.

When Guardianship May be Appropriate

The court will not appoint a guardian if a less restrictive form of intervention is available which is consistent with the person’s welfare and safety.

So, for example, a guardianship generally is not appropriate if the disabled person has a durable power of attorney in place. In that event, the agent whom the disabled person appointed just has to get involved and start making decisions.

But in some cases appointment of a guardian is appropriate. For example, a guardian of the person may be needed if:

• the disabled person has not appointed a health care agent to make decisions for him, and his next-of-kin, typically his children, disagree about what medical care he should receive; or
• the disabled person doesn’t have a family, or doesn’t have any relatives who are able and/or willing to make medical decisions for him.

A guardian of the property may be needed if:

• the disabled person has not executed a durable financial power of attorney; or
• the disabled person has a power of attorney but the agent is abusing the authority granted to him under that document, or, in some other way somebody is financially taking advantage of the disabled person.

Procedure for Appointment of a Guardian in Maryland

In situations where guardianship of the person and/or property is appropriate, one starts the process by filing a petition for appointment of a guardian with the circuit court in the county where the alleged disabled person resides. Maryland Rules govern the contents of the petition. A petition for guardianship must fully comply with each of the Rules to ensure that all of the required information is included in the petition.

If the petition for guardianship is in acceptable form, the Court issues a show cause order setting a hearing date. The show cause hearing is usually held within about 45 days after filing the petition.

If the matter is uncontested, the Judge typically signs an order appointing a guardian at the show cause hearing.

If, however, the matter is contested, then the Court sets the matter for trial.

A common reason for a contested guardianship is the family cannot agree on who should be the guardian for a disabled relative.

In Maryland there is a statutory order of priority as to who serves as guardian. And in the petition for appointment of a guardian the petitioner can certainly allege a priority. But most often the court just wants to know who is going to be the best person to be the guardian for the disabled person. Under Maryland law, the court may, for good cause, appoint someone with lesser priority, or no priority, to serve as guardian for the disabled person.

For More Information or Help with a Maryland Adult Guardianship

Our firm practices Maryland guardianship law. Attorney Henry Nash, Esq. is on the Montgomery County, Maryland Circuit Court’s roster of court-approved counsel in guardianship cases. If you have questions or concerns about guardianship, please feel free to contact us.