Creating Guardianships in Maryland

Guardianship in Towson, MD

Guardianships can occur when people fail to plan for disability which then occurs.

Historically, an English King or  Queen was the protector of their subjects. Maryland was an English colony and inherited this practice. The crown appointed Maryland’s governor.  The governor had the responsibility of protecting the colonists, (as the agent of the Crown).  Over time, the old English system became Maryland common law which eventually formed the basis of this State’s statutes. The statutes and cases interpreting them form what today is known as a Guardianship.

Maryland has a vested interest in protecting its citizens and what they own.

Other state statutes allow a competent person who is at least 18 years of age to have an  Advance Health Care Directive and a financial Power of Attorney. Should that person later become disabled, these documents respectively protect that person’s well being and his or her financial affairs.

Other state statutes dictate what happens when a person becomes disabled and has not signed one or both of the above-named documents. Instead of the governor as the agent of the Crown; in modern times the Court system has the statutory role of protecting Maryland’s citizens and their property.

That can result in a Petition to Appoint a Guardian of Person, Property or of both being filed in the circuit court where the alleged disabled person (ADP) lives or is receiving medical care.  This petition must contain all of the information mandated by the statutes and case law. It must also be accompanied by certificates of two physicians, or one physician and one psychologist who have examined the alleged disabled person, (“ADP”) and made a medical determination that Guardianship is needed.

If the ADP is not represented by an attorney the court will appoint one for him or her. There will be a court hearing at which time the judge (or on occasion a jury), will make a determination whether all of the evidence presented meets the standard of proof to appoint guardians. If the evidentiary standard is met, the judge will appoint whom the bench believes to be the appropriate guardian(s).  The court is the actual Guardian and the person(s) appointed as the Guardian of Person, Property or both, is the court’s agent.

The Guardian of Person has the responsibility to make health care decisions for the judicially declared disabled person. That duty includes making decisions where the disabled person lives, is cared for etc. Protection of income, real and personal property and the paying of debt (from the disabled’s assets) is the responsibility of a Guardian of Property. Both types of guardians must file annual reports with court on forms it provides. These case also remain open until the disability ceases or the person dies.

When compared to traditional estate planning, guardianships are expensive in terms of legal fees, time management and on occasion stress levels. Failing to plan is planning to fail.

Contact