What is a Guardian and Why Would You Need One?

What is a Guardian and Why Would You Need One?

Merriam-Webster’s Dictionary defines a guardian as “one who has the care of the person or property of another” or “one that guards: custodian.”   While simple in definition, the process of becoming someone’s legal guardian is complex and can often be overwhelming. 

Under the laws of most states, a legal guardianship is considered an extreme measure and is typically not pursued unless it is proven to be absolutely necessary in order to protect a person from harm and there are no less restrictive alternatives available.

There are two types of guardianship appointments, guardian of the person and guardian of the property.  A guardian of the person is authorized by the court to make decisions regarding everyday living on behalf of someone else, which may include clothing, food, shelter and medical care.  A guardian of the property, is authorized by the court to make decisions related to all financial matters on behalf of someone else, which may include income, taxes, bills and dealing with real or personal property.

Under Maryland law, a guardian of the person will only be appointed if a court determines that (1) “a person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person, including provisions for health care, food, clothing, or shelter, because of any mental disability, disease, habitual drunkenness, or addiction to drugs,” and (2) “that no less restrictive form of intervention is available which is consistent with the person’s welfare and safety.” MD. CODE ANN., Estates and Trusts § 13-705(b).

Under Maryland law, a guardian of the property will only be appointed if the court determines that (1) “the person is unable to manage his property and affairs effectively because of physical or mental disability, disease, habitual drunkenness, addiction to drugs, imprisonment, compulsory hospitalization, confinement, detention by a foreign power, or disappearance,” and (2) “the person has or may be entitled to property or benefits which require proper management.” MD. CODE ANN., Estates and Trusts § 13-201(c).

While it can often seem very clear to you that your loved one no longer has the mental capacity to make health care or financial decisions on their own behalf, unfortunately the court will not just take your word for it.  The court does not like to take away an individual’s rights and, as a result, there are very strict requirements that must be satisfied before a guardian is appointed by the court.

Due the extreme nature of guardianships and Maryland’s classification of this process as a last resort, alternative options should and must be considered. To learn more about alternatives to guardianship and how the guardianship process works, please contact us to schedule your free consultation.