One of the biggest roles of the Maryland courts in the guardianship process is being the authority on deciding who serves as a ward or incapacitated adult’s guardian. Maryland law has an order of priority that provides for who has the right to serve as guardian. Courts usually give great deference to anyone the alleged incapacitated adult has previously nominated. For example, it is very common in your power of attorney to have language that states that in the event that a guardianship proceeding is required, you nominate the same person that you nominate to serve as your attorney-in-fact.
If no one has been nominated, then Maryland courts will typically look to the alleged incapacitated adult’s spouse. If the spouse is unable or unwilling to serve as guardian, then the alleged incapacitated adult’s parents, adult children, or other heirs may have priority to serve. Then, it generally falls to a caretaker for the adult. Finally, a person or a government agency that is paying benefits for the alleged incapacitated adult and then any other person that the court may deem appropriate.
Where there is more than one individual who has the same priority to serve; the court will determine which individual is more apt for the role in the event that both individuals intend to serve. For more information about how a court impacts the guardianship process, consult a Maryland guardianship lawyer.
Guardian’s Duties and Responsibilities
The duties of a guardian depend on the type of guardianship and the order of the court. For example, a Maryland court can appoint a guardian of the property to make a single decision.
Generally, a guardian of property makes legal and financial decisions for the incapacitated adult, including but not limited to, collecting assets and belongings of the ward, making decisions regarding the ward’s investments, paying for the ward’s housing needs or other bills, and filing the tax returns on behalf of the ward.
A guardian of the person, however, generally makes healthcare decisions and meets other needs depending on the ward. There are some decisions that require additional Maryland court approval such as decisions regarding life-threatening medical treatment, changes in the type of abode of the alleged incapacitated adult, and moving the ward to a different state. In all instances, a guardianship lawyer in Maryland can help someone with these processes.
Guardians are appointed by petitioning the court. An individual will petition the court to serve as guardian of a person, the property, or both. In many cases, an individual’s will may suggest who can serve or who they would nominate to serve as guardian in the event that they were left with minor children. In the event that there is not a will that nominates an individual to serve, the law does provide a priority to serve for who should be considered to serve. Ultimately, the court makes a determination based on the best interest of the child regardless of the nomination of a guardian in a Last Will and Testament.
For many clients doing their estate planning, nominating a guardian in their Last Will and Testament can be stressful. The truth is that the court may review the wishes of the parent and consider them strongly, they still make a decision based on the best interest of the child. For example, if a testator wanted to name their parent, but were concerned that the parent may also be getting older and at some point no longer able to serve as guardian, the court would not automatically appoint the parent. The court will make an independent determination that they were the best person to serve.
Purpose of Maryland Court Supervision
The purpose of court supervision in Maryland is to ensure that the guardian is acting in the best interests of the ward. Removing an individual’s ability to make decisions is a very important matter that the courts takes seriously. Court intervention is to ensure that the guardian is complying with both the court rules and working in the best interests of the ward.
It is possible to have co-guardians appointed in Maryland. However, because serving as a guardian of the property is a fiduciary role, it can cause additional administrative burden to have more than one guardian appointed. In addition, checks, financial forms, or anything else of that nature must be signed by both guardians. Although it might be the right fit for some situations, it is best to speak with a Maryland guardianship attorney who can advise you on the practicality of appointing multiple guardians.
Because Maryland guardianship requires additional or continued court supervision, it cannot just be stopped without court approval. The guardian or someone on behalf of the guardian must petition for the termination of the guardianship. There are some more reasons that a guardianship may be terminated.
The most common reasons to petition the court for termination of the guardianship proceeding are the death of the ward or a petition for termination based on the recovery of the incapacitated individual or, for example, if you are the guardian for a minor and a minor turns 18 and there’s no longer a necessity for a guardianship proceeding. Additionally, a court in Maryland may find a number of other reasons to terminate a guardianship.
How a Maryland Guardianship Can Help
A guardianship lawyer in Maryland can help you collect the information necessary and prepare the petition, which initiates the guardianship proceeding. Once the proceeding is initiated, the attorney can represent you at the initial court hearing. If necessary, they can assist you in hiring experts and collecting information necessary to present at the trial.
After you are appointed, an attorney can advise you of your responsibilities as guardian—either as guardian of a person or property—and assist you with preparing the inventory or the annual reports that are required by the court.