Adult Guardianship Process - 2. Before the Trial
COVID-19 Information Update
On Monday, April 26, 2021, the Judiciary returned to Phase 5 of its Phased Reopening Plan. The courts are fully operational.
The Statement from the Maryland Judiciary Concerning Guardianships of Adults and Minors provides clarifications related to guardianship emergencies, expedited guardianship matters, and court-appointed guardians.
The Maryland Judiciary’s Guidance for Court-Appointed Guardians of the Person and Property provides guidance for court-appointed guardians about caring for the person under the guardianship during the COVID-19 emergency.
Topics on this page
- Who may file?
- Contents of the Petition
- Certificates of Incapacity
- Show Cause Order
- Appointment of Counsel
- Pre-Hearing Statement
- Appointment of Investigator
Establishing a guardianship is a formal, public, legal process. It is initiated when someone files a petition with a Maryland circuit court to be appointed guardian for an “alleged disabled person.” Note that a disabled person is always an “alleged” disabled person until that person is determined by a court to be disabled, based on competent medical evidence, affidavits, or opinions. Prior to that determination, a person is presumed to have capacity. If the court determines that a person is disabled, the court will appoint someone, most often an interested person, to serve as guardian, and issue an order setting out the terms and conditions of the appointment.
Anyone who petitions a court for a guardianship (the “Petitioner”) must be an interested person as defined under the law. Learn more about interested persons.
Read the law: Md. Code, Estates and Trusts Article § 13-101
Read the rules: Md. Rule 10-103
You must file the petition with the circuit court in the county where the alleged disabled person resides. A petition for guardianship of the person may alternatively be filed in the county in which the alleged disabled person is hospitalized or, for a non-resident alleged disabled person, where he or she is then located.
A petition for guardianship of the property of a disabled person who does not reside in Maryland may be filed in the county in which a petition for guardianship of the person may be filed, or in the county where any part of the alleged disabled person’s property is located.
Guardianships of person and property are often sought in the same petition, but they do not have to be.
The Maryland Rules provide detailed guidance as to what should be included in the petition, and court forms are available on the Maryland Courts website.
The petition should contain detailed information about the Petitioner, the alleged disabled person, and all other interested persons. The “Petitioner” is the person asking the court to appoint a guardian for the alleged disabled person. The “alleged disabled person” is the person for whom you are asking the court to appoint a guardian to manage their personal and/or financial affairs. An “interested person” is specifically defined by law, not just someone who has an interest in the guardianship proceeding.
The petition must also generally provide:
- description of the nature of the disability,
- how it affects the alleged disabled person’s ability to function, and
- why a guardian should be appointed.
The Maryland Rules specifically require a Petitioner to set forth detailed examples supporting each element of proof necessary to establish a guardian of the person or property. For example, in a petition to appoint a guardian of the person, the Petitioner will need to specify facts demonstrating the alleged disabled person’s inability to make or communicate responsible decisions concerning his or her person. If a guardianship over property is sought, specific examples of the alleged disabled person’s inability to manage his or her property and affairs effectively are required. The Petitioner must address less restrictive alternatives, including describing the less restrictive alternatives that have been attempted and failed.
While not specifically required by rule, it may be a good idea for the Petitioner to include a detailed background of events leading up to the Petitioner’s decision to file the guardianship petition. The petition should “tell a story.” This is especially true when there are complicated circumstances giving rise to the filing of the petition, such as significant medical issues, family discord, or if the matter is expected to be contested. Providing a detailed history can set the stage for the court and can also protect the Petitioner from accusations of having filed a proceeding in bad faith. This strategy may also ultimately be helpful in assisting the Petitioner to recover his or her legal fees from the guardianship estate.
Any petition must also disclose whether a guardian or conservator has been appointed for the alleged disabled person in another proceeding or whether an instrument exists that nominates a guardian. If the disabled person is represented by an attorney, that attorney’s name and address should be included in the petition. If not, the petitioner should file a motion requesting an attorney be appointed by the court to represent the alleged disabled person in the guardianship proceeding.
If a guardianship over property is sought, the petition should include a description of the alleged disabled person’s assets, including current values of those assets.
Two certificates from health care professionals who have examined or evaluated the alleged disabled person certifying that the alleged disabled person is, in fact, disabled and in need of a guardianship must accompany the petition. The certificates may be obtained from:
- Two licensed physicians; OR
- One licensed physician AND
- One licensed psychologist;
- One licensed certified social worker–clinical; or
- One nurse practitioner.
Each certificate must state:
- the name, address, and qualifications of the person who performed the examination or evaluation
- a brief history of that person’s involvement with the alleged disabled person
- the date of the last examination or evaluation of the disabled person; and,
- the person’s opinion as to:
- the cause, nature, extent, and probable duration of the disability
- whether institutional care is required, and
- whether the disabled person has sufficient mental capacity to understand the nature of and consent to the appointment of a guardian.
At least one examination or evaluation must occur within 21 days before the date the petition is filed. The Maryland Courts website provides a separate form for certificates from a physician, psychologist, and licensed certified social worker-clinical.
These certificates are admissible as evidence of disability at a guardianship hearing, without the presence or testimony of the certifying physician, psychologist, or social worker, unless a request is filed by an interested party that the testimony be presented in court. These certificates are often the only evidence of disability on which a court will base its determination to appoint a guardian. If you are unable to have the disabled person evaluated because the disabled person is under the control of a person who has refused to permit examination, there is a process available to have the court order an examination.
Read the law: Md. Code, Estates and Trusts § 13-705
After the petition is filed, the court will sign an Order, called a “Show Cause Order,” requiring the alleged disabled person, through his or her attorney, and any other interested person or agency, to respond to the guardianship petition within a certain period of time, usually 20 days from the date they are provided with a copy of the Order. The Show Cause Order will also set the date and time for a court hearing on the guardianship petition.
The petitioner is responsible for making sure that the disabled person, his or her attorney, and all interested persons are served with a copy of the Show Cause Order within the time identified by the court in the Show Cause Order. A copy of the guardianship petition, physician’s certificates and other required documents must also be served with the copy of the Show Cause Order.
After a petition for guardianship of the person and/or property of an alleged disabled person is filed, the court will appoint an attorney for the disabled person who is not already represented by an attorney of their own choosing. This is required to ensure that the alleged disabled person’s due process rights are not violated during the guardianship proceedings, particularly since the alleged disabled person faces significant and usually permanent loss of his or her basic rights and liberties. Learn more about the role and responsibility of the appointed counsel.
The court may issue an order directing the parties, interested persons who have responded to the petition or show cause order to file a brief pre-hearing statement. This pre-hearing statement is limited to the following topics:
- Hearing Attendance by the Alleged Disabled Person – Will the alleged disabled person attend the hearing in person or by remote electronic participation. Are special accommodations needed to facilitate hearing attendance? If alleged disabled person is not attending the hearing, then why not? Note that the responses to these questions are subject to the attorney-client privilege.
- Jury Trial – Does the alleged disabled person waive the right to a jury trial?
- Stipulations and Limitations - Is there a stipulation or limitation of any issue? A stipulation is an agreement between the parties about certain facts or issues.
- Party Positions - What is the party or interested person’s position on:
- the need for guardianship;
- less restrictive alternatives to guardianship or limitations on the powers to be granted to the guardian;
- designation of the proposed guardian and any issue related to the proposed designation;
- the identity of any interested person not previously identified in a pleading or paper filed in the action, the relationship of that person to the alleged disabled person, and any issue relating to the designation of, or service upon, the interested person,
- the description, location, and value of any property, including any property not previously identified in a pleading or paper filed in the action; and
- expert testimony.
- Scheduling Concerns – Are there any special scheduling concerns other than those related to an expedited hearing in connection with a medical treatment (this is covered by Md. Rule 10-201(f))?
- Existing Documents - Is there an existing power of attorney, advance health care directive, or other similar document?
- Mediation – Would mediation be helpful? If so, what issues should be included in the mediation?
- Independent Investigator - Should an independent investigator be appointed? If so, for what purpose? (See below for information about the appointment of an independent investigator.)
The court order will include the date by which the pre-hearing statement must be filed with the court.
Real the rule: Md. Rule10-106.1
The court may appoint an independent investigator to investigate the facts of the case and report to the court. This investigator is not an advocate for the disabled person or any other party to the proceeding. The fee of a court-appointed investigator is paid from the guardianship estate, or otherwise as the court directs.
Read the rule: Md. Rule 10-106.2