When someone becomes incapable of managing their affairs, and they don’t have powers of attorney, someone can be appointed by the court to make financial and medical decisions for that disabled person, often called the “Ward”. Someone can be a guardian of the Property and/or a Guardian of the Person for a Ward.
A Guardian of the Person makes decisions about the Ward’s personal care, medical care, residence, and legal decisions including release of confidential information.
A Guardian of the Property, also called a Conservator, makes decisions about a Ward’s financial matters and manages their real and personal property.
The courts will presume that an adult is competent unless someone has demonstrated in court that the Alleged Disabled Person (“ADP”) lacks the capacity to make or communicate responsible decisions concerning their personal or financial matters. For many people, a lack of capacity is caused by a mental illness such as dementia or Alzheimer’s, a developmental disability, a physical incapacity, or chronic drug abuse, among others.
The fact that someone has a disability does not automatically mean that they need a guardian. This is true, for example, when someone is in the early stages of dementia and still remains competent to make and communicate decisions while understanding the options and consequences of those options and decisions. If someone is not able to make decisions legal proceedings for a Guardianship begin with a petition to the court and, in Maryland, two certificates from medical or social work professionals. At least one of these certificates must come from the person’s doctor, stating that the ADP has a disability and needs a guardian. In addition, at least one of the certificates must indicate that the person was examined within 21 days of the guardianship petition.
Once notice of the hearing date of the guardianship proceedings is given to any interested parties, family members, etc., a hearing will be held about the need for guardianship. The ADP is represented by a court-appointed attorney. Although an individual can consent to a guardianship, they may not and the hearing is an adversarial process and the petitioner must prove that the individual needs a guardian. The ADP has due process rights to protect their right to act for themselves. If the hearing is likely to be adversarial it is a good idea to have an attorney familiar with guardianship proceedings to help you prepare properly. Guardianships are normally permanent as a Ward is likely to have a progressive condition. However, the court may modify, revoke, or terminate a guardianship if the Ward’s condition improves. A guardian’s activities are monitored and they must file periodic reports, approved by the court, to remain guardian.
Guardianship of the Property (Conservatorship)
A Guardian of the Property, also called a Conservator, makes decisions about a Ward’s financial matters and manages their real and personal property.
Guardianship of the Person
A Guardian of the Person makes decisions about a Ward’s person, medical care, residence, and legal decisions including release of confidential information.
Temporary or Emergency Guardianships
Although a guardianship case typically takes several months to conclude through the courts, there is a process, in an emergency, to have an immediate, temporary guardianship granted. The Court will approve such a guardianship if a petitioner can show that without it the Alleged Disabled Person (“ADP”) will suffer serious and irreparable harm. An example of a financial emergency is when someone’s home will be foreclosed and sold at auction immediately unless a Guardian of the Property is appointed to pay the mortgage and stop the foreclosure. It is not an emergency if the only consequence is a bill will be paid late.
An example of a personal emergency is when someone requires immediate medication, or an immediate medical procedure, to prevent death or long-term injury and a medical provider requires a decision from a Guardian of the Person. It is not an emergency if the personal or medical decision can be made after the normal time in which a guardianship case is decided.
