Guardianship of a Minor - Frequently Asked Questions
Topics on this page:
- Guardianship of a Minor
- Petition for Guardianship of a Minor
- Who is an interested party?
- Can the minor choose the guardian?
- Will the minor have their own attorney?
- What if I have a criminal conviction? Can I still be appointed as the guardian of a minor?
- What if the third party does not know who the minor child's father is?
- What if the third party cannot find the child’s parents?
- Guardianship Order
- Social Services and Benefits
- Is guardianship required to receive social service benefits, such as welfare payments or medical assistance?
- If Social Services issues a welfare check to a third party, does that mean the third party has guardianship or custody?
- Is a child qualified to receive Social Security benefits in the event of the guardian’s death?
- Modification and Termination of a Guardianship
Guardianship of a Minor
Is guardianship the same thing as custody?
No. Although there can be some overlap in the types of powers and responsibilities, guardianship and custody are two different legal processes with different powers and responsibilities. Talk to an attorney to determine which option is best for your situation. Learn about child custody in Maryland.
Is guardianship the same thing as kinship care?
No. In Maryland, a person assuming care of a relative’s child is referred to as a kinship caregiver. Kinship care can be either formal or informal. Guardianship is a legal process where the court appoints a person to manage a minor’s personal affairs, financial affairs, or both. Learn about kinship care in Maryland.
What if I was appointed to be a minor’s guardian through the minor’s parents’ will?
This is called a testamentary guardianship and is different from the court appointment of a guardian. Unless prohibited by an agreement or a court order, a minor child’s surviving parent can appoint one or more guardians (and successor guardians) of the minor. For a testamentary guardianship, the court does not need to approve or qualify the guardian.
Read the law: Md. Code, Estates and Trusts Article § 13-701
Petition for Guardianship of a Minor
Who is an interested party?
In guardianship cases, interested persons are people affected when the court appoints a guardian for another person or anybody who has assumed responsibility for the minor or disabled person.
Only interested parties can petition for guardianship of a minor and ask the court to address problems with the minor’s guardianship. An interested party also has certain notification rights. Learn more about interested parties.
Can the minor choose the guardian?
If the minor is at least 14 years old - The court will appoint the person designated by the minor as long as the person is otherwise qualified, unless the appointment would not be in the minor’s best interests.
If the minor is at least 16 years old - As long as the person is otherwise qualified, the minor can designate a guardian of the property. In that case, the court is not bound to appoint that person.
Read the law: Md. Code, Estates and Trusts Article § 13-702
Read the rule: Md. Rule 10-201, Rule 10-301 (e)
Will the minor have their own attorney?
A minor can have their own attorney. If the minor is not represented by an attorney, the court may appoint an attorney for the minor. However, there is no strict requirement that a minor have their own attorney or that the court appoint an attorney for them. Whether an attorney is appointed by the court will depend on the specific facts of your situation.
Read the rule: Md. Rule 10-106
What if I have a criminal conviction? Can I still be appointed as the guardian of a minor?
Unless you can show the court good cause, the court may not appoint you as the guardian of the person of a minor if you have been convicted of:
- a felony
- crime of violence
- assault in the second degree
- a sexual offense in the third or fourth degree
- attempted rape or sexual offense in the third or fourth degree,
A crime of violence is defined by § 14-101 of the Criminal Law Article of the Maryland Code.
Additionally, the court may not appoint you as guardian of the property of a minor if you have been convicted of a crime that reflects badly on your honesty, trustworthiness, or fitness to perform the duties of a guardian of the property of a minor. Examples of such crimes include:
- fraud
- extortion
- embezzlement
- forgery
- perjury
- theft
Read the law: Md. Code, Estates and Trusts § 11-114; Criminal Law § 14-101
There are factors that the court may consider when determining whether there is good cause to appoint a person with a disqualifying offense as a guardian. Factors include:
- the nature of the offense;
- the time elapsed since the conviction;
- the conduct of the proposed guardian since the conviction
- the relationship, if any, between the proposed guardian and the minor; and,
- any special vulnerability of the minor.
Read the Rule: Md. Rule 10-113
What if the third party does not know who the minor child's father is?
Where the father's identity is unknown, the third party may file a motion asking the court to waive the notice requirement.
The third party will have to provide proof of efforts to locate the father. The court may allow service by posting or publication.
What if the third party cannot find the child’s parents?
Where the parents' identity is unknown, the third party may file a motion asking the court to waive the notice requirement.
The third party will have to provide the court with proof of efforts to locate the parents. The court may allow service by posting or publication. Learn more about finding a party.
Guardianship Order
What is a guardianship order?
The guardianship order is the court order that appoints you as the minor’s guardian. Read this document carefully. The court’s order lists your powers and responsibilities as a guardian. The order also serves as proof to others of your appointment and authority as guardian.
What happens if I want to do something that is not included in the guardianship order?
Ask the court for permission BEFORE performing any action that is not authorized in the guardianship order. Make sure you ask the court for permission in writing.
Where can I find information or training to be a guardian?
The Maryland Courts website has extensive information for prospective and appointed guardians. The Maryland Rules also provide guidelines for court-appointed guardians.
Read the Rules: Appendices: Guidelines for Court-Appointed Guardians of the Person, Guidelines for Court-Appointed Guardians of the Property
Social Services and Benefits
Is guardianship required to receive social service benefits, such as welfare payments or medical assistance?
This depends. Guardianship is not required to obtain social service benefits, such as welfare payments. Guardianship is also not required to get Medical Assistance, where the third party is a blood relative to the minor and the minor is living with them. Contact Department of Social Services for assistance in determining to what benefits the minor is entitled.
If Social Services issues a welfare check to a third party, does that mean the third party has guardianship or custody?
No, social services cannot grant guardianship or custody.
Is a child qualified to receive Social Security benefits in the event of the guardian’s death?
Guardianship does not qualify a child to receive social security benefits in the event of the guardian's death.
Modification and Termination of a Guardianship
Can a guardianship be modified?
Yes. A court order modifying the prior order must be entered. The parties can file a consent to the modification, or the court can enter the order after a hearing.
When does the guardianship end? Can a guardianship be terminated?
For minors without a disability, the guardianship ends when the minor turns 18, becomes emancipated, or dies. For minors with a disability who turn 18, you or another interested person can file for guardianship of an alleged disabled person. A guardianship of the property can end when there are no more assets in the guardianship estate that need a guardian’s management.
When any of these events occur, you file a petition for termination within 45 days of the event. You can file a motion to terminate the guardianship of the person, the property, or both.
A guardianship can also be terminated for certain other reasons. The parties can file a consent to the termination, or the court can enter the order after a hearing. There are notice requirements for interested parties.
Read the rule: Md. Rule 10-209, Rule 10-710
Can a guardian be removed?
Yes. The court MUST remove a guardian who has:
- willfully misrepresented material facts leading to their appointment or to other action by the court in reference to the fiduciary estate;
- willfully disregarded an order of the court;
- shown themselves incapable, with or without fault, to perform the duties of their office properly; or,
- breached their duty of good faith or loyalty in the management of property of the fiduciary estate.
The court MAY remove a guardian who has:
- negligently failed to file a bond within the time required by rule or order of the court;
- negligently failed to obey an order of the court; or,
- failed to perform any fiduciary duty or to administer the fiduciary estate competently.
Read the law: Md. Code, Estates and Trusts Article § 15-112
An “interested party” can also file a petition with the court to remove a guardian.
Read the rules: Md. Rule 10-208, Rule 10-712
Can a guardian resign?
Yes, you can file a petition for resignation with the court to resign as guardian of the person, property, or both. Your petition must include the reasons for the resignation. You can also request the appointment of a substitute or successor guardian. There are notice requirements for interested parties. The guardian’s resignation does not terminate the guardianship until the court enters an order accepting the resignation.