FAQ

A guardian of the person may be appointed to make personal decisions involving matters such as health care, living arrangements, care, and support. A guardian of the property manages financial affairs or property when someone is unable to do so effectively and has assets, income, benefits, or other property requiring management. A person may need one type of guardianship but not the other - or may need both. The appropriate structure depends on what decisions need to be made and what authority is actually missing.

No. A diagnosis alone does not establish the need for guardianship. Maryland law focuses on the person's ability to make or communicate responsible decisions and whether a less restrictive alternative is available. Two people with the same diagnosis may have very different abilities and support systems. The question is not simply what is the diagnosis? It is what can this person still do, what help is needed, and what legal authority is necessary?

Yes. An adult guardianship petition generally must be supported by evaluations from qualifying health care professionals. Those evaluations help the court assess the person's capacity and the need for guardianship. Maryland has specific requirements concerning who may perform the evaluations and when they must occur. If you are considering guardianship, it can be helpful to speak with an attorney before asking health care providers to complete court paperwork so that you understand what the proceeding requires.

Yes. An adult guardianship proceeding affects significant individual rights. The person alleged to need a guardian is entitled to legal representation and, if necessary, the court generally appoints an attorney to represent that person. That lawyer represents the person who may need a guardian - not the petitioner or the family as a whole. Even when family members believe everyone is pursuing the same result, guardianship is a court proceeding concerning another person's legal rights.

Maryland law establishes an order of priority for appointment as guardian of the person. It includes people such as someone previously nominated by the individual, a health care agent, a spouse, parents, children, certain other relatives, and other appropriate persons or agencies. Priority does not guarantee appointment. The court can consider the circumstances and whether the proposed guardian is appropriate. When family members disagree about who should serve, the issue may become part of a contested guardianship proceeding.

Yes. Guardianship does not have to be all-or-nothing. Maryland law permits the court to give a guardian only the authority necessary to address the person's demonstrated needs. A person may need assistance with some decisions while remaining capable of making others. A limited guardianship can therefore provide needed protection while preserving decision-making authority the individual can continue to exercise.

Appointment is the beginning of the guardian's legal responsibilities, not the end of the case. A guardian must act within the authority granted by the court and remains subject to court oversight. Guardians of the person generally have ongoing reporting obligations, while guardians of property have financial reporting and accounting responsibilities. Guardianship can later be reviewed, modified, or terminated when circumstances warrant. Becoming a guardian creates an ongoing legal responsibility, not simply authority to make decisions.

A Maryland court may appoint a guardian of the person of a minor when the legal requirements are met and the appointment is in the child's best interests. Guardianship may be appropriate when another adult needs legal authority to care for a child or when a child has property that requires management. The important question is what legal authority is needed and why. Depending on the circumstances, the appropriate proceeding may be guardianship, custody, or another legal arrangement.

Guardianship and custody can both involve responsibility for a child, but they arise under different Maryland laws and are not interchangeable. A custody case generally concerns rights and responsibilities under Maryland family law. Guardianship is a separate court process that can give a guardian legal authority over the child's person, property, or both. Which process is appropriate depends on the child's circumstances, the relationships involved, and the authority that is actually needed.

No. Appointment of a guardian of the person of a minor does not itself require termination of the parents' parental rights. That distinction can be important when a family needs another adult to have legal authority to care for a child but the goal is not to sever the child's relationship with a parent. The particular rights and responsibilities involved will depend on the guardianship order and the family's circumstances.

Yes. Guardianship of a child's property is different from guardianship of the child's person. A minor may need someone with legal authority to manage money or property belonging to the child even when the parents continue to provide day-to-day care. This can arise when a child receives an inheritance, settlement proceeds, insurance proceeds, or other significant assets.

Age matters. Maryland law gives older minors a formal role in designating a proposed guardian in certain circumstances, although the court retains responsibility for determining whether the appointment satisfies Maryland law and the child's best interests. A child's preference can therefore matter, but it does not by itself determine the outcome.

A parent's objection can significantly change the nature of the case. The proceeding may involve disputed facts about the child's circumstances, the proposed guardian, parental involvement, and whether guardianship is the appropriate legal process at all. Depending on the circumstances, the dispute may also overlap with Maryland custody law. That is one reason it is important to identify the correct legal proceeding before deciding how to move forward.

Family members do not have to agree before someone can ask a Maryland court to establish guardianship. If there is disagreement, the court considers the evidence concerning the person's capacity, the decisions they can and cannot make, the support already available, and whether a less restrictive alternative is sufficient. Sometimes the real disagreement is not whether a parent needs help, but how much help is needed and who should provide it.

The court ultimately decides who should serve. Maryland law establishes priorities for appointment, but priority does not automatically determine the outcome in every case. These disputes can become highly personal. Where possible, we look for ways to separate the person's actual needs from the family conflict and determine whether some areas of disagreement can be resolved without litigating every issue.

Yes. A person entitled to participate in the guardianship proceeding may challenge issues such as whether guardianship is necessary, the scope of the proposed guardianship, or who should be appointed. An objection does not necessarily mean every part of the petition must be contested. In some cases, the parties agree that assistance is needed but disagree about the appropriate guardian or the extent of authority that should be granted.

Yes. Appointment as guardian is not necessarily permanent. A Maryland court can address concerns about a guardian's performance and, when appropriate, remove or replace a guardian. Concerns may arise because a guardian is no longer able or willing to serve, is failing to perform required duties, or because interested persons believe the guardian is not acting appropriately. The focus should remain on whether the existing arrangement is working for the person the guardianship was created to protect.

Guardians are subject to court oversight and must act within the authority given to them. If there are legitimate concerns about a guardian's conduct, the court has authority to review the guardianship and take appropriate action. The right response depends on the concern. A missed report, disagreement over a care decision, and suspected misuse of assets are very different problems and may require different legal responses.

Yes. A guardianship can be modified or terminated when circumstances change. A person's abilities may improve, a different level of assistance may become appropriate, or circumstances may otherwise affect the need for the existing guardianship. The fact that guardianship was necessary at one point does not mean that the same level of court-ordered authority must continue indefinitely. The legal structure should continue to fit the person's actual needs.

It can, but not always. A properly prepared power of attorney may give an agent authority to manage financial or legal matters, while an advance directive may provide authority for a health care agent to make medical decisions. If those documents provide the authority that is needed and the chosen agents can act, guardianship may not be necessary. Guardianship can still become necessary if the documents do not address the problem, the agent cannot serve, or a dispute develops.

The biggest difference is who chooses the decision-maker and when. With a power of attorney, you choose an agent and decide what authority to give that person while you have capacity to make those choices. With guardianship, a court becomes involved after a person needs protection or decision-making assistance and determines whether guardianship is necessary, who should serve, and what authority the guardian should have. Planning ahead can preserve choices that may no longer be available after incapacity occurs.

A power of attorney is generally most useful before you need someone else to act for you. An unexpected injury or medical event can create a need for someone else to handle financial or legal matters at any age. A power of attorney must be created while you have the capacity to make the necessary decisions. Planning in advance allows you to choose the person you trust and determine what authority that person should have.

An advance directive allows you to make choices about future health care decision-making. Among other things, a Maryland advance directive can allow you to name a health care agent to make medical decisions if you later become unable to make those decisions yourself. It can also communicate your wishes concerning certain types of medical care. An advance directive gives you an opportunity to decide who should speak for you and what guidance you want that person to have before a medical crisis occurs.

They serve different purposes. A power of attorney generally addresses financial, property, and other legal matters within the authority granted to the agent. An advance directive addresses health care decision-making and can name a health care agent. For many people, having both provides more complete incapacity planning because it addresses who can handle financial matters and who can make health care decisions if help is later needed.

An agent acting under a power of attorney has legal responsibilities and must act within the authority provided by the document. If there are concerns about misuse of money, unauthorized transactions, or other improper conduct, Maryland law provides ways for certain people to ask a court to review issues involving the power of attorney or the agent's conduct. In some situations, concerns about the person's protection or finances may also raise the question of whether guardianship or other court intervention is necessary.

There is no single timetable for a Maryland guardianship case. Timing depends on factors such as obtaining required medical or professional evaluations, providing notice to interested persons, the court's schedule, and whether anyone objects to the guardianship or the proposed guardian. An uncontested case may proceed more efficiently than a case involving disputed capacity, competing proposed guardians, discovery, or other contested issues.

The cost of a guardianship case depends largely on its complexity. An uncontested matter will generally require less attorney time than a case involving disputed capacity, family conflict, competing proposed guardians, discovery, experts, or contested hearings. There may also be costs beyond attorney's fees, including court costs and expenses associated with medical or other professional evaluations. After learning more about the circumstances, an attorney can discuss the work the case is likely to require and the firm's anticipated retainer.

Maryland law provides procedures for situations involving a genuine emergency, but not every urgent family problem qualifies as a legal emergency. For guardianship of the person, an emergency generally involves a substantial risk of death or immediate and serious physical harm. If someone appears to be in immediate danger and guardianship may be necessary, it is important to identify both the nature of the emergency and the legal authority that is actually needed.

Maryland provides court forms and information for people seeking guardianship, and a petitioner is not always required to have an attorney. Guardianship proceedings can nevertheless involve significant legal and procedural requirements. An attorney can help determine whether guardianship is the appropriate proceeding in the first place, prepare and present the case, and address objections or other issues that arise.

It depends on your role and what is disputed. The person alleged to need an adult guardian is entitled to legal representation, and that attorney represents that individual - not the family as a whole. Other family members or interested persons may want separate counsel if they intend to challenge whether guardianship is necessary, object to the proposed guardian, seek appointment themselves, or raise concerns about the requested authority. Multiple people can participate in the same proceeding while having very different legal interests.