When someone you care for is in good health, you may not be thinking about their possible need for an adult guardianship. But if you are considering this step, you are not alone. The unfortunate truth is that many older adults have long periods toward the end of life when they are not able to make decisions for themselves — due to Alzheimer’s or other forms of dementia, a stroke, an accident, or some other serious medical condition. If the person has an advance health care directive, the decision-making about her medical care, if she becomes incapacitated, may already decide. If she has a durable power of attorney for finances, there will be someone to take care of money matters.

But what if she has only one of these documents? Or neither? Or there are important decisions not covered in those documents? That is where adult guardianship may be the only alternative.

What is an adult guardianship?

If someone cannot make important decisions for herself, a judge appoints someone — called the “guardian” — to make those decisions for her. Decisions made by the guardian have the legal backing of the court. The guardian might be appointed to make her financial decision, medical and personal care, or both.

Someone appointed to make decisions about her medical care and other aspects of her personal life — for example, where she should live — is called a “guardian of the person.” Someone appointed to decide about finances is called a “guardian of the property.” If she needs both, a court may appoint the same person to do both jobs. When the petition for adult guardianship is filed, the court appoints an attorney to represent the disabled (to the extent he/she does not have one). This person, by law, must act as an advocate for the disabled and is not merely a dispassionate neutral party. At this point, there normally is a deadline by all “interested persons” (i.e. normally immediate family members) to file a response to the initial petition voicing any opposition. The opposition may be about many things and is not necessarily just regarding who is to be appointed. If there is any opposition regarding whether adult guardianship services are necessary, who should be appointed as guardian, or there is an issue regarding the duty or rights of a guardian, the matter turns into a contested guardianship. If there is no opposition, the matter is an uncontested adult guardianship.

Typically, a contested adult guardianship centers around individuals fighting over who should be appointed. In a contested adult guardianship in Maryland each person who contests to be appointed is by law, ranked for preference of appointment according to certain legal standards. If two or more individuals have the same ranking, then the court will choose the best between the two. If there is a higher-ranking petitioner, then the court shows preference to the higher ranking individual unless the lower ranking person can show good cause” to over look his/her priority. For example, if a brother and sister both wanted to serve as guardian for disabled mom, then (without any other factors) each enjoys the same ranking and the court will pick between the both of them as to who shall serve. However, in this example, if the brother was appointed as durable general power of attorney by disabled mom at a time when she was not disabled, then the brother has a higher ranking to be appointed that his sister by virtue of the durable general power of attorney. However, if neither person is fit or preferable (in the eyes of the court), then the court may pick a third party to serve. This is an over simplified example but it gives a taste of the complexities of adult guardianship.

If after the petition for guardianship is filed, the court appoints an attorney in Maryland for the disabled, and no one contests the appointment of the guardian, then at the appointed time, the court, will appoint the requested person (or persons).

After the appointment of a guardian, the court-appointed guardian then files an inventory (if guardian of the property is appointed) with the court. Thereafter, on the anniversary of the appointment, an accounting of the guardian’s assets is required. If a guardian of the person is appointed, a yearly report is also due.