Adult guardianships: Protecting disabled persons

When a disability prevents an adult from effectively managing his or her property and finances or making responsible decisions regarding his or her health, it may be necessary to ask the court to appoint a guardian to protect that person’s interests. Failure to seek appointment of a guardian for an adult who lacks capacity can have serious, irreversible ramifications for a person’s health, well-being, finances, and property interests.

In Maryland, there are two different types of adult guardianships: (a) guardianship of the person, and (b) guardianship of the property. A petitioner may request to be appointed as either guardian of the person or of the property, but in many instances both forms of guardianship may be necessary.

The requirements for appointing a guardian of the property are set forth in Md. Code Ann., Est. & Trusts § 13-201(c). The court will appoint a guardian of the property if it determines that:

1. 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
2. The person has or may be entitled to property or benefits which require proper management.

The requirements for appointing a guardian of the person are set forth in Md. Code Ann., Est. & Trusts § 13-705(b). The court will appoint a guardian of the person if it determines from clear and convincing evidence that:

1. A 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
2. No less restrictive form of intervention is available that is consistent with the person’s welfare and safety.

Less restrictive forms of intervention might include intervention from Adult Protective Services, assisted living facilities, and the existence of a previously executed advanced directive appointing a person to make health care decisions for the disabled person. If less restrictive forms of intervention consistent with the person’s welfare and safety are available, a guardian of the person will not be appointed.

Any interested person may petition for guardianship of an alleged disabled person.
“Interested persons” are defined by Md. Code Ann., Est. & Trusts § 13-101 and Md. Rule 10-103.

The statute specifically identifies the persons who are entitled to be appointed as a guardian for a disabled person and the priority in which they are to be considered.

The persons who are eligible to be appointed guardians include the disabled person’s spouse, parents, children, heirs, but the list of potential guardians in the statute and rule is comprehensive and should be reviewed in determining whether a person is eligible for the role.

An adult guardianship is commenced with the filing of a petition. Md. Rule 10-112 sets forth the contents that must be included in the petition. A form petition is also available on the  ccgn002.pdf (mdcourts.gov).

One of the important filing requirements to keep in mind is the need to file signed and verified certificates of two health care professionals who have examined or evaluated the alleged disabled person.

The health care professionals must be either two physicians licensed to practice medicine in the United States or one such licensed physician and one licensed psychologist, licensed certified social worker-clinical, or nurse practitioner. The examinations or evaluations by the health care professionals must have occurred 21 days before the filing of the petition.

If it is not possible to attach the certificates to the petition because a person with whom the alleged disabled person is residing has refused to permit examination or evaluation, the petition must allege that fact in the petition and articulate the risk to the alleged disabled person.

The court has the authority to issue a show cause order requiring the person who is refusing to permit the examination to appear personally and explain why the disabled person should not be examined.

Appointing a guardian of the person is important to ensure that the disabled person’s health and well-being are protected. The guardian of the person’s powers include making decisions regarding the disabled person’s medical care, treatment, counseling, and other services.

Seeking appointment of a guardian of the property is important to protect that person’s financial interests. A guardian of the property’s duties include managing income and assets, filing taxes, and paying expenses.

The consequences of not seeking appointment of a guardian of the person or property can be disastrous for the disabled person’s physical health, mental health, and financial stability. For example, the disabled person’s inability to make health-care decisions could result in that person not seeking medical care or treatment for a life-threatening medical condition.

Disabled persons might also fall prey to scams seeking to take advantage of the elderly, or they might mismanage money to the point that all their assets are depleted. For that reason, it is important to take action to protect a disabled person as soon as it becomes apparent that the person is incapable of managing his or her medical care or financial interests.

Marshall Yaap is a principal with Offit Kurman in Bethesda. He leads the firm’s family law practice group (central) and can be reached at [email protected].