Publication : Brochures
Appointing a Guardian
The Maryland State Bar Association’s
Public Awareness Committee has prepared this information. It is intended
to inform the public and not serve as legal advice.
What is a Guardian?
A guardian is someone appointed by the Court to assume
legal responsibility for another person or another person’s property
or both. Guardianship is appropriate when a disabled person, known as the
ward, is unable to make responsible decisions concerning his or her medical
care or financial situation, usually because of a physical or mental illness.
Sometimes guardianship may be necessary to obtain consent for a specific
medical procedure, for continuing ongoing medical care or for placing the
ward in a safe living environment. Guardianship may also be appropriate for
Who Can Be a Guardian?
Maryland law establishes a priority of individuals eligible
to serve as guardians. The first priority candidate is someone designated
by the ward before they became disabled; next are blood relatives and individuals
who have a particular interest in the person, such as the director of the
local social services department or office on aging. An individual with higher
priority may be passed over and one with lower priority appointed guardian
if good cause is shown.
How is a Guardian Appointed?
In all instances, a petition must be filed with the Circuit
Court in the county where the alleged disabled person resides, is hospitalized
or is located. The petition should state all reasons for the appointment
of a guardian and whether the request is for guardianship of the ward’s
person, property or both. Quite often, guardianships of person and property
are sought in the same petition.
The petition should also provide the petitioner’s
name, address and telephone number, date of birth and relationship to the
ward. It must also include the ward’s name, address, gender, age, the
name and address of the person with whom the ward resides and an alternate
address for service of process if the ward resides with the petitioner. If
a guardianship over property is sought, the petition should include a description
of the ward’s assets. Also accompanying the petition must be:
- for a disabled ward, verified certificates from two
physicians, describing the physical or mental disability that makes appointment
of a guardian necessary (one of the medical statements must be dated within
21 days of filing for guardianship);
- a list of the ward’s potential heirs if he or
she died without a will, existing guardians or government agencies acting
as guardians and all other persons exercising some control over the ward,
including their names, addresses, telephone numbers and the nature of their
- the name and address of the ward’s attorney if
he or she has one.
What Happens After the Petition is Filed?
After the petition is filed, the Court will sign an Order
requiring the ward, his or her attorney, and any other interested person
or agency to respond to the guardianship request within 20 days. The ward
and any interested person or agency must be notified of the guardianship
proceedings and his or her rights at the proceedings. The court will appoint
an attorney to represent the ward and may appoint an independent investigator
to look over the facts of the case and report written findings to the court.
The court will also schedule a hearing or jury trial, where a judge or jury
decides whether guardianship is appropriate and who should be appointed as
Usually, the judge decides the validity of the guardianship
petition, but the Maryland Rules of Procedure provide that a jury trial is
available unless waived. As a practical matter, a jury trial rarely occurs
because the ward’s attorney often agrees that guardianship is advisable,
and their client usually is unable or unwilling to object. When a jury trial
is held, it is governed by the rules of evidence, which determine what information
may be introduced during a formal hearing or trial. All interested parties
may participate in the trial at which the judge or jury appoints the guardian
and establishes his or her responsibilities to the ward.
What is the Duty of a Guardian After Appointment?
Once named, the guardian has a duty to act according to
the Court’s instructions, which are usually set during the guardianship
proceeding. If the court grants guardianship over the ward’s property,
the guardian has a fiduciary duty to manage the ward’s assets properly.
The law requires that the guardian of the property file an annual accounting
with the Court detailing the financial transactions of the previous year.
An individual known as a trust clerk reviews this accounting, done on forms
available from the local clerk of the court, for compliance with the court’s
The guardian of a person is responsible for making health
care decisions and assuring that the ward is living in a safe environment.
The guardian of the persons must file an annual report detailing the ward’s
status, the care plan and whether the guardianship needs any changes.
Is it Necessary to Hire and Attorney to File for Guardianship?
Guardianship proceedings can be handled without an attorney,
but the procedure is often complicated. Hiring an attorney to represent the
petitioner can ultimately save time and expense while ensuring a result that
is in the best interest of the ward.
Appointing a Guardian ©
1986, MSBA, Inc. Revised 1998
All rights reserved. No part of this work may be reproduced in any
form without written permission from the Maryland State Bar Association.