Guardianship is a legal process appointing an individual (the "guardian") to manage the personal and/or financial affairs of another person (the "ward") deemed incapable of making and communicating decisions on their own due to a disabling condition. Guardians may be appointed for both adults and minors. In Maryland, guardianship proceedings are handled in the circuit court and orphans' court.
Under Maryland law, there are two types of guardianship: 1) guardian of the person, and 2) guardian of the property. An individual may need one or both types of guardianship. Guardian of the person is the appointment of a guardian to make decisions regarding the ward's "person," which involves managing matters such as health care, food, clothing, and shelter. Guardian of the property is the appointment of a guardian to manage a ward's property and financial affairs, which includes property or benefits the ward currently has or may be entitled to receive in the future.
Guardianship proceedings are often necessary when an aging adult is no longer capable of making sound decisions on their own. For example, a son or daughter may need to seek legal guardianship of their aging parent, who no longer has the cognitive ability to safely and reasonably make important decisions regarding their finances and medical care due to disability or disease. Guardianship proceedings can become very complicated. It is important to seek legal help when the need for guardianship becomes apparent.
For parents of a child with a disability, legal guardianship may be necessary as the child transitions into adulthood. Once a child reaches the age of majority (age 18 in Maryland), parents no longer have the legal rights they were entitled to during the child's youth. This can include, for example, accessing health and school records. The decision whether or not to seek legal guardianship can be difficult. Parents may still need to make decisions for their son or daughter with a disability, but there may be some areas where the child can make sound decisions on their own. Fortunately, legal guardianship is not necessarily an "all or nothing" undertaking. It is possible to stipulate some areas where the son or daughter with a disability can retain important decision-making rights in their life as an adult. The scope of any legal guardianship can be tailored to the adult child's specific needs and circumstances.
Guardianship should be utilized as a last resort, and less restrictive alternatives to a guardianship proceeding should always be explored first. Executing durable powers of attorney, preparing advance directives, and designating a representative payee are examples of solutions that can be implemented to avoid lengthy and complicated guardianship proceedings in certain circumstances. However, many times a guardianship proceeding is the best or only option for the safety and well-being of a loved one.
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