In Maryland, there is a distinction between a “guardian of the person” and a “guardian of property.” The difference lies in the scope of responsibilities and the nature of their duties. A “guardian” is a general term that encompasses both roles, but the roles are different and can serve different purposes.
A “guardian of the person” is responsible for making decisions related to the personal care and well-being of the disabled person. This scope includes decisions about health care, shelter, daily needs such as food and clothing, and other aspects of personal welfare. A guardian of the person may have the authority to consent to medical treatment or manage the person’s personal effects, but they do not have control over the individual’s financial assets unless specifically authorized.
A “guardian of property” is tasked with managing the financial and property interests of the disabled person. This responsibility includes managing assets and making financial decisions to preserve the estate for the benefit of the disabled person and his or her dependents. This guardian acts as a fiduciary and must ensure the property is not being squandered or misused. This guardian could have broad powers but is subject to court supervision and limitations.
The prospective guardian of the person and the guardian of property could be different people, and/or one type of guardianship could be requested without the other.
The Guardianship Process
A Maryland court will appoint a guardian of the person if it determines by clear and convincing evidence that the individual lacks sufficient understanding or capacity to communicate responsible personal decisions due to a mental disability, disease, habitual drunkenness, or addiction to drugs. The court must find that no less restrictive forms of intervention are available that are consistent with the individual’s welfare.
The court may appoint a guardian of the property if the court determines that:
- The person is unable to manage effectively the person’s property and affairs because of physical or mental disability, disease, habitual drunkenness, addiction to drugs, imprisonment, compulsory hospitalization, detention by a foreign power, or disappearance; and
- The person has or may be entitled to property or benefits which require proper management.
To have a guardian appointed, an interested person may file a petition requesting the court to appoint a guardian of an alleged disabled person. The petition shall be filed where the alleged disabled person resides or has been admitted for the purpose of medical care or treatment. The petition shall include as exhibits:
- A copy of any instrument nominating a guardian;
- A copy of any power of attorney which the alleged disabled person has given to someone;
- A copy of any written supported decision-making agreement;
- Signed and verified certificates of two health care professionals who have examined or evaluated the alleged disabled person. The health care professionals shall be either two licensed physicians licensed to practice in the United States or one such licensed physician and one licensed psychologist, licensed certified social worker-clinical, or nurse practitioner. An examination or evaluation by one of the health care professionals must have occurred within 21 days before filing the petition.
If the petition is not accompanied by the required certificate because the alleged disabled person is not consenting to the examinations or the alleged disabled person is under the control of someone who is not allowing the evaluations, the court follows specific procedures. The court may issue an order requiring either the person who is refusing the examinations or the person controlling the alleged disabled person to appear in court and show cause why the person should not be evaluated.
If the court finds after a hearing that examinations are necessary, it shall appoint either two physicians or a physician and another clinical health care professional mentioned above. If both health care professionals find the person to be disabled, the court shall issue an order requiring the alleged disabled person to answer the petition for guardianship and shall require the petitioner notice of the petition.
Once notice is served, a hearing will be held to determine whether guardianship is necessary. The court will evaluate evidence to decide if the alleged disabled person lacks sufficient understanding or capacity to make responsible personal decisions due to a mental disability, disease or other conditions.
The court will appoint a guardian if it finds, by clear and convincing evidence that the alleged disabled person is unable to make responsible decisions and that no less restrictive forms of intervention are available that ensures their welfare and safety. The court may appoint an attorney to represent the alleged disabled person, and that attorney must ensure that proper procedures are followed, guardianship is imposed only if necessary, and the process remains no more restrictive than warranted.
Once appointed, the guardian of the person is required to complete an orientation program and training provided by the court. This training must be completed within 120 days of appointment. The guardian of person files an annual or biannual report with the court. The report must include: the present place of residence and health status of the ward; the guardian’s plan for preserving and maintaining the ward’s future well-being; and an assessment of whether the guardianship should continue, cease, or be altered.
Once appointed, the guardian of property is required to complete an orientation and training program provided by the court. The training should include an overview of the guardianship terms and processes, the role, powers and duties of the guardian, how to apply for and maintain government benefits, and types and signs of abuse, neglect, and exploitation.
The guardian of property acts as a fiduciary and is charged with preserving the property in the guardianship estate for the benefit of the ward and other interested parties. This includes paying for the ward’s clothing, support, care, protection, welfare, and rehabilitation as needed.
The guardian is subject to court supervision and must post a judicial bond to ensure the faithful performance of their duties. The court retains ultimate jurisdiction over guardianship matters, emphasizing that the guardian serves as an agent for the court. The guardian must comply with court orders, such as seeking permission for significant actions like selling real property or paying attorney’s fees. Regular reporting to the court, typically on an annual basis, is required to ensure proper management of the ward’s property and welfare.