Taking on the role of guardianship

All Things Legal

By Jane M. Winand, Legal Assistance Attorney

You may be faced with the responsibility to care for a loved one who is suffering from Alzheimer’s or has had a stroke, or care for a severely disabled child or a family member battling an alcohol or drug addiction.

Depending on the extent of the illness or disability, you may need to consider being appointed by a court as the guardian for the loved one.

A guardian is an individual appointed by the court to assume legal responsibility for another person, another person’s property or both.

Guardianship is necessary when a disabled person, referred to as the ward, is unable to make responsible decisions concerning his or her medical care or financial situation, typically because of a physical or mental illness.

Once appointed, the guardian may consent to a specific medical procedure for the ward, authorize the continuation of ongoing medical care, or place the ward in a safe living environment.

Guardianship for a minor may also be necessary in certain circumstances to enroll the child in school, handle entitlements such as Social Security benefits, and make medical care decisions.

Maryland law establishes a priority of individuals eligible to serve as guardians. The first priority is someone designated by the ward before he or she became disabled.

Next in priority are blood relatives and individuals who have a particular interest in the ward. An individual with higher priority may be passed over for guardianship in favor of an individual with lower priority if good cause is shown.

In Maryland, in order to be appointed a guardian, the person must file a petition with the Circuit Court in the county where the disabled person resides, is hospitalized or is located.

The petition should state all of the reasons for the appointment of a guardian and whether the request is for guardianship of the ward’s person, property or both.

The prospective guardian’s petition must include the guardian’s name, address, phone number, date of birth and relationship to the ward. The petition must disclose the ward’s name, address, gender, age, name and address of the person with whom the ward resides, and an alternate address for service of process if the ward resides with the person submitting the petition.

If a guardianship over property is sought, the petition should include a description of the ward’s assets.

After the petition is filed, the court will sign an order requiring the ward, the ward’s attorney, and any other interested person or agency to respond to the guardianship request.

The ward and any interested person or agency must be notified of the guardianship proceedings and his or her rights at the proceedings.

The court will appoint an attorney to represent the ward and may appoint an independent investigator to look over the facts of the case and report written findings to the court.

The court will also schedule a hearing or jury trial, where a judge or jury decides whether guardianship is appropriate and who should be appointed as the guardian.

Once appointed by the court, the guardian has a duty to act according to the court’s instructions, which are usually addressed during the guardianship proceeding.

If the court grants guardianship over the ward’s property, the guardian has a fiduciary duty to manage the ward’s assets properly. The guardian is responsible for making health care decisions and assuring that the ward is living in a safe environment.

In addition, the guardian must be very careful in managing the ward’s affairs. It is advisable for the guardian to keep a journal and maintain all receipts.

A guardian must understand that he or she may be held personally and financially responsible if the court determines that the guardian did not act in the ward’s best interest.

Guardianship proceedings can sometimes be handled without an attorney, but the procedure can be complicated.

For more information, refer to the Maryland courts website on guardianship.

If you have questions about guardianship, call the Fort Meade Legal Assistance Division to schedule an appointment with an attorney at 301-677-9504 or 301-677-9536.

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