COVID-19 Information Update
On Monday, April 26, 2021, the Judiciary returned to Phase 5 of its Phased Reopening Plan. The courts are fully operational.
The Statement from the Maryland Judiciary Concerning Guardianships of Adults and Minors provides clarifications related to guardianship emergencies, expedited guardianship matters, and court-appointed guardians.
The Maryland Judiciary’s Guidance for Court-Appointed Guardians of the Person and Property provides guidance for court-appointed guardians about caring for the person under the guardianship during the COVID-19 emergency.
Topics on this page
- Hearing Requirement
- Standard of Incapacity – Guardianship of the Person
- Standard of Incapacity – Guardianship of the Property
- Selection of Guardian
- Guardianship Order
- After Appointment
Regardless of whether or not the guardianship is contested, a hearing on the guardianship petition will be conducted in the circuit court for the county in which the petition was filed.
The two main issues in a guardianship hearing are:
- Is a guardian is needed (i.e., is the alleged disabled person really disabled?); and,
- Who is the most appropriate guardian for the disabled person.
The Petitioner, who is the person asking the court to appoint a guardian, has the burden to prove both of these issues. Note that the alleged disabled person may ask the court for a closed hearing without a jury.
Read the law: Md. Code, Estates and Trusts Article 13-705(e)
The court will appoint a guardian of the person if the court determines from clear and convincing evidence that an alleged disabled person:
- lacks sufficient understanding or capacity to make or communicate responsible personal decisions, including provisions for health care, food, clothing, or shelter, because of any mental disability, disease, habitual drunkenness, or addiction to drugs; and,
- no less restrictive form of intervention is available that is consistent with the person’s welfare and safety.
Read the Law: Md. Code, Estates and Trusts, § 13-705(b)
Usually, guardianship hearings are held before a trial court judge who decides the two issues. However, in guardian of the person cases, Maryland law provides that the disabled person is entitled to a trial by jury on the issue of whether a guardian is needed (whether the person is legally disabled).
When a jury trial is held, it is conducted like a formal trial. All interested parties may participate in the trial, and the alleged disabled person has an absolute right to be present at a trial, present evidence, and cross-examine witnesses with the help of his or her court-appointed or personal legal counsel. The jury then determines, as a matter of fact, whether the alleged disabled person is disabled or not. The disabled person, or his or her attorney, may waive the right to a jury trial, in which case the judge would determine whether the disabled person is legally disabled.
Read the Rule: Md. Rule 10-205
There are three main factual issues that a judge or jury must decide in determining whether an alleged disabled person is legally disabled, and in need of having a guardian of the person appointed.
1. Does the disabled person lack sufficient understanding or capacity to make or communicate responsible personal decisions, including provisions for health care, food, clothing, or shelter?
The mere diagnosis of a disability is not sufficient. Rather, there must be specific evidence of poor decision-making. For example, evidence that the alleged disabled person is leaving the stove on, forgetting to take medications, or taking other specific actions that are endangering his or her welfare or safety is necessary to satisfy this requirement.
2. Is that lack of capacity due to a mental disability, disease, habitual drunkenness, or addiction to drugs?
The judge or jury will want to be sure that other factors have been examined and eliminated as sources of the alleged disabled person’s inability to make or communicate responsible decisions. For example, if depression or other treatable mental disorder is causing the problem, it may be appropriate for therapy or prescription drugs to be used to address the concern of capacity. Perhaps there may be a drug problem, or drug interactions or inappropriate dosing of medications involved. Or, there may be a vision, hearing, or speech impairment, or other language, family, social, cultural or religious barriers that are contributing to the perception of a disability, when no disability is actually involved.
3. Is there no less restrictive alternative available?
The court will need to determine that there is no less restrictive alternative that is available that can protect the welfare and safety of the alleged disabled person. Since a guardianship significantly restricts personal rights, it is important that there are no other alternatives available that may meet the needs of the alleged disabled person, other than a guardianship. An example of a less restrictive alternative would be a health care power of attorney.
In the past, if there was no response to the show cause order and if the court was satisfied that the petitioner complied with all of the legal filing requirements, the court could have ruled on the petition without a hearing. This is no longer the case. Although there is no right to a trial by jury in a case involving only the guardianship of property, a hearing is still required.
Read the law: Md. Code, Estates and Trusts Article § 13-211
At a trial seeking to have a guardian of the property appointed, the petitioner must prove to the judge by a preponderance of the evidence, that the alleged disabled person is:
- unable to manage his or her property and affairs effectively because of a physical or mental disability, disease, habitual drunkenness, addition to drugs, imprisonment, compulsory hospitalization, confinement, detention by a foreign power, or disappearance; and,
- that the alleged disabled person has or may be entitled to property or benefits that require proper management.
Read the law: Md. Code, Estates and Trusts Article § 13-201
After the court has determined that the alleged disabled person is, in fact, disabled, the court must determine who would be the best person to serve as the guardian for the disabled person. Often, the disabled person may have previously nominated someone in the family or a friend to serve as guardian, or the family has come to agreement about who should serve. However, there are times when more than one person wants to serve as guardian. In those cases, each prospective guardian must present his or her case to the court in a public trial, and the court will then choose the guardian.
Maryland law establishes the order of priority of individuals who are eligible to serve as guardian of the person and guardian of the property.
For a guardian of the person, the order of priority is as follows:
- A person, agency, or corporation nominated by the disabled person if the disabled person was 16 years old or older when the disabled person signed the designation and, in the opinion of the court, the disabled person had sufficient mental capacity to make an intelligent choice at the time the disabled person executed the designation;
- A health care agent appointed by the disabled person in accordance with Title 5, Subtitle 6 of the Health – General Article;
- The disabled person’s spouse;
- The disabled person’s parents;
- A person, agency, or corporation nominated by the will of a deceased parent;
- The disabled person’s children;
- Adult persons who would be the disabled person’s heirs if the disabled person were dead;
- A person, agency, or corporation nominated by a person caring for the disabled person;
- Any other person, agency, or corporation considered appropriate by the court; and
- For adults less than 65 years old, the director of the local department of social services or, for adults 65 years old or older, the Secretary of Aging or the director of the area agency on aging, except in those cases where the department of social services has been appointed guardian of the person before age 65. On appointment as guardian, directors of local departments of social services, directors of area agencies on aging, and the Secretary of Aging may delegate responsibilities of guardianship to staff persons whose names and positions have been registered with the court.
For a guardian of the property, the order of priority is as follows:
- A guardian, conservator or similar fiduciary appointed by a foreign jurisdiction.
- The second priority is someone designated by the disabled person before they became disabled. A competent person may nominate a person to serve as his or her guardian of the property in that person’s general power of attorney. Likewise, a competent person may nominate a person to serve as guardian of the person in that person’s health care power of attorney.
- Disabled person’s spouse
- Disabled person’s parents
- A person or corporation nominated by the will of a deceased parent
- Disabled person’s children
- The persons who would be the minor or disabled person’s heirs if the minor or disabled person were dead;
- A person or corporation nominated by a person, institution, organization, or public agency that is caring for the minor or disabled person;
- A person or corporation nominated by a governmental agency that is paying benefits to the minor or disabled person; and
- Any other person considered appropriate by the court.
If interested persons of equal priority are seeking guardianship, the court will select the one best qualified of those willing to serve. A court may only appoint a person with a lower priority over a person with a higher priority upon “good cause shown.”
Unfortunately, case law in Maryland has not defined “good cause,” and this issue has been addressed only once by the Maryland Court of Appeals. In selecting the best qualified guardian, the best interests of the alleged disabled person is always the court’s overriding concern. The court is not concerned with “who got the bigger bike when they were young,” as is all too often the driving factor in contested guardianship matters, and will not litigate playground battles that occurred between the interested persons during their childhood.
Rather, in determining whether good cause exists to appoint an interested person with equal or less priority as guardian of the person, the court may consider the following factors:
- nature of and length of relationship between the interested person and the alleged disabled person;
- frequency of contact between the interested person and the alleged disabled person;
- why the interested person wants to be guardian;
- what is the interested person’s plan for the alleged disabled person if he is appointed guardian;
- how close does the interested person live to the alleged disabled person and how often will the interested person be able to visit the alleged disabled person;
- whether the interested person is reasonably available to make decisions for the alleged disabled person;
- whether the interested person is in good health and able to take on the duties of a guardian;
- what other responsibilities the interested person has (e.g., young children, demanding job); and
- whether the interested person is willing to confer with the alleged disabled person and/or other family members regarding decisions.
The court may make the following additional inquiries into the selection of a guardian of the property:
- what level of education the interested person attained;
- whether the interested person has employment history or experience with financial matters, accounting or taxes;
- whether the interested person has a checking account, and how often he balances the account;
- whether the interested person is familiar with simple bookkeeping practices;
- whether the interested person has a criminal record;
- what assets alleged disabled person has, and what the interested person has planned for management of the alleged disabled persons assets;
- who is handling the alleged disabled person’s property now and how long that has occurred; and
- whether the interested person is a joint owner of any property with the alleged disabled person.
Read the Case: Mack v. Mack, 329 Md. 188 (Court of Appeals 1993)
At an uncontested guardianship hearing, or after trial in a contested matter, if the court has determined that a guardian of the person and/or property is needed, and has selected an appropriate guardian, the court will issue a written order appointing a guardian.
The order will state:
- whether the guardianship is of the property or person or both;
- the name, sex, and date of birth of the disabled person;
- the name, address, email address (if available), and telephone number of the guardian;
- the reason for the guardianship;
- the amount of the guardian of the property’s bond, or that the bond is waived;
- the filing due date for the annual report of the guardian; and
- the specific powers and duties of the guardian and any limitations on those powers or duties.
Read the guardianship order carefully. If you would like to take any action (or inaction) that is not addressed in the guardianship order, contact the court in writing for permission.
Read the Rule: Md. Rule 10-108
Remember that in guardianship matters, a court assumes jurisdiction over a disabled person to protect that person who is unable to care for himself of herself. Therefore, the court is actually the guardian and the court-appointed guardian merely serves as the agent for the court in carrying out the court’s responsibilities. The various rules and requirements of guardians should be read with this important point in mind.
Read the Case: Kircherer v. Kircherer, 285 Md. 114 (Court of Appeals 1979)
There are orientation requirements for prospective guardians. Prospective guardians must watch this video on the Maryland Courts website. After watching the entire video, you will need to complete a certificate of completion and file it with the court. More information, including a link to the certificate form, is available on the Maryland Courts website.
Once you have been appointed the guardian of the person and/or the guardian of the property of a disabled person, you must complete a training program. This program may be offered in-person or offered online. Contact the court that appointed you as guardian for information about the training requirement.
In addition to training requirements, you have ongoing reporting and recordkeeping requirements. For example, guardians of the property must file an initial inventory with the court, within 60 days of appointment, that lists all of the assets and income in the guardianship estate at the time you were appointed and an annual Fiduciary's Account. Guardians of the person must also file annual reports with the court.
Read your guardianship order very carefully. Extensive information about your ongoing training and reporting requirements is available on the Maryland Courts website.