October is Guardianship Awareness Month
Guardianship, sometimes called conservatorship, is a legal relationship created when a court gives one person (the guardian) the power to make personal and financial decisions for another person who is seen to be at risk of harm or unable to handle their own affairs. However, guardianship should be used as a last resort after less restrictive decision-making options have been considered.
For more information on guardianships and alternatives, defense against guardianship and restoration of rights, or improving guardianship systems, visit the National Center on Law and Elder Rights (NCLER).
Public Guardianship Program Overview
The Maryland Department of Aging Public Guardianship Program serves individuals 65 years of age and older, who have been deemed by a court of law to lack the capacity to make or communicate responsible decisions concerning their daily living needs. The law authorizes, as a last resort, appointing the Secretary of the State Department of Aging or the Director of a local
Area Agency on Aging (AAA) as a "guardian of person" when no other person or organization is willing and appropriate to be named.
What is Public Guardianship?
Public Guardianship is a relationship created by state law in which a court gives one person or entity (the guardian) the duty and power to make personal and/or property decisions for another person (the ward). The court determines if a person’s ability to make health and safety decisions for themselves is significantly impaired by disease, accident, or disability. If so, the court will appoint a guardian to act as a surrogate decision-maker on behalf of that disabled adult. Guardians are sought to be family members or friends, but if said person is unwilling or deemed inappropriate to serve in this capacity, sometimes that appointment can be given to attorneys, corporations, government agencies, or even volunteers.
A public guardian is the guardian of last resort and should only be requested after all alternatives have been exhausted. The public guardianship program provides protection and advocacy on behalf of the disabled adult through case management under the direction of the court provided by a guardianship specialist of a local Area Agency on Aging. For additional information download the DHS Public Guardianship flyer here.
There are two types of guardianship appointments:
- A
guardian of the person is authorized by the court to make decisions for the disabled person about their health care, shelter, and any other daily needs.
- A
guardian of property is a person or agency appointed by the court to manage the property of a disabled person.
Who is at risk?
Any older adult who lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his or her person, including provisions for health care, food, clothing, or shelter because of age, disease, habitual drunkenness, addiction to drugs, accident, and physical or mental disability.
Less Restrictive Alternatives
When an older 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 older adults in question 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 these alternatives prior to beginning guardianship proceedings.
Advance Directives are legal documents that allow you choose someone to make health care decisions for you in the event you are unable to do so for yourself and/or outline what end of life treatments you do or do not want to undergo. There are three sections to the state’s model Advance Directives Form, which may be completed fully or partially; meaning you may just appoint a decision maker, just document your treatment options, or both.
- If you decide to name someone to act on your behalf should you become incapacitated, that individual named is called a Health Care Agent. He or she can make any decisions authorized in the document. A guardian of person may not be required if there is a health care agent, unless the agent does not have the power to make the specific medical decision needed. Section I of the advance directive form states your selections and outlines the authority given to the health care agent.
- Section II of the state form enables you to communicate your wishes on what types of treatments you wish to receive as well as the treatments you do not want to have. This section is also referred to as a Living Will. The types of treatments include use of feeding tubes, ventilators, and pain medication.
- A guide, “Maryland Advance Directive: Planning for Future Health Care Decisions”, which contains the State’s Advance Directive Forms, can be found online at: https://aging.maryland.gov/Documents/adirective.pdf. Additional details on advance directives can also be found by visiting: http://www.oag.state.md.us/Healthpol/AdvanceDirectives.htm or https://www.peoples-law.org/advance-directives
Additional resources may be found here:
Living Will is a written, legal document by the signer that spells out the medical treatments that the signee would and would not want to be used to keep them alive, as well as other medical decisions that include pain management or organ donation. If the alleged disabled person made a living will while mentally competent, the document must be honored by health care providers, family members, and courts. However, the existence of a living will (or Advance Directive) may not prevent the need for a guardian, since the disabled person may need to have other non-healthcare decisions made on their behalf. The terms of a living will may only be applicable if the alleged disabled person is terminally ill or in a persistent vegetative state. The document must be carefully reviewed in order to know precisely what specific directions are given.
Learn more:
Surrogate Decision-Making allows relatives or close friends of an alleged disabled person to consent to certain medical procedures and to the withholding or withdrawing of life-sustaining procedures without first obtaining a guardianship of person under certain circumstances (terminal, end-stage, and persistent vegetative state). The (Maryland’s Health Care Decision Act) statue defines “Standard for Surrogates” as any person authorized to make health care decisions for another under this section shall base those decisions on the wishes of the patient and if the wishes of the patient are unknown or clear, on the patients best interest.
