What is guardianship?

Maryland laws trace their roots back to our colonial cousins in England. Common law in England held that the head of the monarchy, be it the King or the Queen, was the Guardian of their subjects. As an English colony, Maryland inherited the same laws and customs as England. Originally, Maryland’s governor was appointed by the crown. He was therefore the Guardian of those living within Maryland and had the responsibility to protect them.

Over time English common law became Maryland common law. The common law eventually became statutes. The court system was established to provide a system in which cases are heard in order to interpret how to apply the statutes.  Today, Maryland’s court system replaces the governor as the direct guardian of those living in this state when necessary.

In Maryland, a guardianship may become necessary when an individual fails to appropriately institute an estate plan, a Power of Attorney and  an Advance Health Care Directive. The matter commonly arises when a person who failed to plan for future disability becomes mentally disabled  and cannot reasonably manage their property, affairs, or can no longer make proper health care decisions.

Guardianships cases are formal court proceedings usually heard in the jurisdiction where the “alleged disabled person” resides.  Based on a number of facts brought into evidence, the court will make a determination as to whether the judicial appointment of guardian of person and/or property is warranted.  If so, the court will use its judgment to appoint who it believes is the most appropriate person(s) to serve assume the guardianship.  The guardian then acts as the court’s agent to protect that disabled individual.

A guardian of person makes health decisions for the court’s ward including where that person will be designated to reside and by what means the person will be provided care or treatment.  A. guardian of property protects the property and affairs, collects income and pays the court’s ward’s bills.

Guardianships are typically expensive in terms of legal fees, time management and stress levels in comparison to normal estate planning.

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