Recently, two sensationalized accounts of guardianship matters have put a national spotlight on adult guardianships. First is the Netflix film “I Care a Lot.” This movie features Marla Grayson (played by Rosamund Pike), a crooked, court-appointed legal guardian that defrauds dozens of elderly wards in Massachusetts and traps them under her care. The second high-profile situation is the real-life case of the conservatorship of Britney Spears. In 2008, a California judge determined Spears was unfit to care for herself and manage her own finances. Spears’ father was appointed as the conservator. Since 2008, the conservatorship has remained in place. Recently, a documentary called “Framing Britney Spears” which focuses on Spears’ career and the conservatorship renewed interest in the matter and helped spearhead an online movement to terminate the conservatorship, dubbed #FreeBritney.
While these two dramatic instances are far from the norm, they have brought increased attention to adult guardianships. Below, I will cover the basics of adult guardianships in Maryland, including when they are needed and how they are obtained. This article will focus on adult guardianships only, not guardianships over minors. An adult guardianship is a court proceeding to appoint someone to care for an alleged disabled person. There are two types of adult guardianships: guardianship of the person and guardianship of the property.
Pursuant to Estates & Trusts § 13-705, a guardianship of the person is needed when that person “lacks sufficient understanding or capacity to make or communicate responsible personal decisions, including provisions for health care, food, clothing, or shelter, because of any mental disability, disease, habitual drunkenness, or addiction to drugs” and “no less restrictive form of intervention is available that is consistent with the person’s welfare and safety.” The need for a guardianship of the person must be proven by clear and convincing evidence. Less restrictive forms of intervention include an Advanced Healthcare Directive or a Surrogate Decision Maker.
Alternatively, pursuant to Estates & Trusts § 13-201(c), a guardianship of the property is needed when a person is “ unable to manage effectively the person’s property and affairs because of physical or mental disability, disease, habitual drunkenness, addiction to drugs, imprisonment, compulsory hospitalization, detention by a foreign power, or disappearance; and the person has or may be entitled to property or benefits which require proper management.” The need for a guardianship of the person must be shown by a preponderance of the evidence. The most common less restrictive alternative to a guardianship of the property is a Durable Power of Attorney.
The most frequent reasons for the need for an adult guardianship include individuals with diminished mental capacity (i.e. Alzheimer’s, dementia, etc.) or adult children with disabilities. When these individuals either require medical care and/or have property that needs to be managed, a guardianship may be needed unless there is an acceptable, less restrictive alternative available.
Petitions for adult guardianships are filed in the circuit court. For a guardianship of the person, the petition must be filed where the person either resides or is receiving medical care. (See Md. Rule 10-201(b)). For a guardianship of the property, the petition for guardianship must be filed where the person resides. (See Md. Rule 10-301(b))
To prove disability, petitions must include two certificates from health care professionals certifying the individual is disabled and in need of a guardianship. These health care professionals must include at least one physician and can also include either a Psychologist, Licensed Certified Social Worker – Clinical (LCSW-C) or a nurse practitioner. Importantly, at least one certificate must be based on an examination within 21 days of the filing of the petition. The relevant statute and rules regarding Physician’s Certificates include Estates & Trusts § 13-705 and Md. Rules 10-202, 10-205 and 10-301. Of note, the required contents of the petition are noted in Md. Rules 10-201 (guardian of the person) and 10-301 (guardian of the property).
Following the filing of a Petition for Guardianship, the Court appoints an attorney to represent the alleged disabled person. Furthermore, the Court issues a Show Cause Order, providing a date in which the alleged disabled person and all interested persons should file a response as to why a guardian should not be appointed. Subsequently, the Petitioner must serve all parties and file Proof of Service with the Court. Ultimately, a hearing is held. A jury trial is available in guardianship of the person proceedings; however, it may be waived by the alleged disabled person’s counsel.
In certain guardianship proceedings, all parties agree to the need for a guardianship and no disputed issues arise. In these situations, the process is quick and streamlined. However, in other scenarios, guardianships are contested. Contested guardianship trials can be problematic, prolonged and expensive. One recurrent issue is whether the guardianship is even necessary. These types of contested matters will focus on whether the standard (“unable to make responsible decisions”) is properly evidenced by the Physician’s Certificates. Also, the dispute could center on whether there are less restrictive alternatives (i.e. power of attorney) available. If there is a power of attorney in place, a Petitioner would need to justify why it should be overruled.
Another frequent issue in contested guardianships is when an examination of the alleged disabled person is not possible. Perhaps a family member or caregiver is unwilling to allow an examination. In these situations, pursuant to Md. Rule 10-202(a)(3), the Petitioner should allege the disabled person is residing with or under the control of a person who refuses to permit the examination, and the disabled person may be at risk unless a guardian is appointed.
Assuming the Court determines the establishment of a guardianship is appropriate, the issue turns to who should serve as the guardian. Maryland law establishes a priority list among candidates to be chosen as guardian. This can be found in Estates & Trusts §§ 13-207 (guardian of the property) and 13-707 (guardian of the person). The priority list of persons entitled to appointment is as follows:
- A person selected in writing by the alleged disabled person;
- The alleged disabled person’s spouse;
- The alleged disabled person’s parents;
- The alleged disabled person’s adult children;
- The alleged disabled person’s heirs;
- A person or corporation nominated by a person, institution, organization, or public agency that is caring for the minor or disabled person;
- A person or corporation nominated by a governmental agency that is paying benefits to the minor or disabled person; and
- Any other person considered appropriate by the court.
The alleged disabled person, counsel for the alleged disabled person, and other interested persons can contest guardianship proceedings. “Interested persons” include the local Department of Aging if the person is 65 years old or older, or the Department of Social Services if the person is under 65 years old. Any interested person may obtain and conduct discovery in a contested guardianship matter, unless the court orders otherwise.
Zachary W. Worshtil is an attorney at Ralph W. Powers, Jr., P.C. He is also a member of the PGCBA Board of Directors and co-chair of the Probate, Estates, Trusts & Elder Law Section. He concentrates his practice primarily in estate administration and probate litigation.