Adult Guardianship Process - 1. Alternatives to Guardianship
Topics on this page
- Less Restrictive Alternative
- Financial Decisions - Powers of Attorney and Representative Payee
- Health Care Decisions - Advance Directives and Surrogate Decision Making
- Maryland State Agencies
- Private Services
Less Restrictive Alternative
When an adult is unable to make personal decisions (e.g., medical decisions, meals, etc.) or handle their own property (e.g., bank accounts, bills, etc.), a court can appoint a guardian. This is a very serious step for the individual because that individual may lose their right to make almost all personal and/or financial decisions. In addition, the adult guardianship court process can be time-consuming and costly.
In Maryland, a guardian should only be appointed if there are no less restrictive alternatives. During the court guardianship proceeding, the court must first determine there is no less restrictive alternative available, so consider alternatives prior to beginning guardianship proceedings. This article lists some, but not all, available alternatives.
Read the law: Md. Code, Estates and Trusts Article, 13-705
Financial Decisions - Powers of Attorney and Representative Payee
Powers of Attorney - Consider a power of attorney for handling money and property. A power of attorney is a document that gives someone legal authority to act for another person, including managing financial affairs such as money and property. However, there is a mental competency requirement to create a power of attorney, so if the alleged disabled person did not make plans before becoming disabled, this may not be an available option. Learn more about powers of attorney.
Representative Payee – The Social Security Administration, Veteran’s Administration, and other government agencies may allow the appointment of another person as a representative payee; i.e., a person appointed to receive benefit checks for a beneficiary who cannot manage their own benefits.
Health Care Decisions - Advance Directives and Surrogate Decision Making
Advance Directives - Advance directives (also common referred to as a “living will”) provide a way for someone to make health care decisions in advance, including selecting a health care agent and detailing treatment preferences. Creating an advance directive also has a competency requirement, so if the alleged disabled person did not make plans before becoming disabled, this may not be an available option. Learn more about advance directives.
Surrogate Decision Making - In circumstances where a patient is no longer able to make health care decisions personally (as determined by two physicians) and has not picked a health care agent (or the health care agent is not available), then Maryland law provides for surrogate decision making. The surrogate decision maker can make health care decisions according to the duties and limits imposed by law. Learn more about surrogate decision making.
Maryland State Agencies
The Maryland Department of Human Services has a Social Services to Adults program, which assists adults with limited capacities who wish to remain or become self-supporting and self-sufficient. Income eligibility requirements apply to adults with disabilities under the age of 65. For adults with functional disabilities due to advanced age (65+), there are no income eligibility requirements. Contact your local social services office for assistance. More information is available on their website.
The Maryland Department of Aging provides a range of services and assistance, including Senior Care Services, for adults aged 65 or older. These services may include personal care, chore service, medications, medical supplies, adult day care, respite care, home delivered meals, transportation, and emergency response systems. There are certain eligibility requirements. Contact the Department of Aging for assistance and more information.
Public Guardianship - Note that these services are distinct from adult public guardianship, which is administered by these two departments. The local departments of social services administer adult public guardianships for alleged disabled persons aged 18-64. The Department of Aging administers adult public guardianships for those aged 65 and older.
There is a wide range of private services that may address the needs of the adult. Below are some examples.
- Alternative housing arrangements, such as assisted living programs, continuing care retirement communities, or group housing
- In-home aides
- Food delivery services
- Transportation services
Guardianship and Its Alternative, A Handbook on Maryland Law (Joan O’ Sullivan, J.D., Author; Virginia Rowthorn, J.D. and Ellen A. Callegary, J.D., 2011 Edition Handbook Co-Editors) has a detailed discussion of alternatives to guardianship that you can review.