A Patient-Centered Approach to Adult Guardianship and Its Alternatives
IDEAL Identify Evaluate Assess Limit Tool and Resource Guide for Maryland Healthcare Settings
A Patient-Centered Approach to Adult Guardianship and Its Alternatives
05/2024
The Maryland Judiciary thanks the following organizations for their assistance in the development of this guide.
This guide was supported, in part, by a grant (No. 90EJIG0027-02-00) from the Administration for Community Living (ACL), U.S. Department of Health and Human Services (DHHS). Grantees carrying out projects under government sponsorship are encouraged to express freely their findings and conclusions. Therefore, points of view or opinions do not necessarily represent official ACL or DHHS policy.
The information provided in this resource guide does not, and is not intended to, constitute legal advice. This guide is for informational purposes only.
Table of Contents
court process. for exploring alternatives to adult guardianship and, if no alternatives are available, preparing for the guardianship IDEAL Tool and Resource Guide for Maryland Healthcare Settings: A Patient-Centered Approach to Adult Guardianship and Its Alternatives This guide is a resource
Purpose The IDEAL Approach and Too l Alternatives to Guardianship Resource Guide Guardianship Law And Process Appendices A. Supports and Accommodations B. Capacity Assessments C. Guardianship Referral Worksheet
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D. Acronyms and Glossary of Terms E. Resources and Link Index
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Purpose
Patients experiencing diminished capacity present unique challenges to healthcare settings. This guide outlines patient-centered options for adult patients in hospitals, skilled nursing facilities, and other healthcare settings who need assistance making personal or financial decisions. Guardianship is one option, but it has significant limitations. Alternatives to guardianship are a range of formal and informal options that alone or together allow someone to have their needs met without a guardian. They may be faster, more effective, less expensive, and less restrictive than guardianship. “The typical [person subject to guardianship] has fewer rights than the typical convicted felon – they can no longer receive money or pay their bills. They cannot marry or divorce. By appointing a guardian, the court entrusts to someone else the power to choose where they will live, what medical treatment they will get and, in rare cases, when they will die. It is, in one short sentence, the most punitive civil penalty that can be levied against an American citizen, with the exception, of course, of the death penalty.” -Former U.S. Congressman Claude Pepper (FL) Exploring alternatives to guardianship is also important when a patient needs a guardian. To appoint a guardian, a court must find that alternatives to guardianship have been explored and exhausted. Alternatives can also help ensure guardianship is in its least restrictive form for the patient. A person under an unnecessary or overly broad guardianship (where a guardian has more control than is needed) can experience worse life and health outcomes and may be more vulnerable to abuse and exploitation. 1 Additionally, the associated loss of self determination can affect the person’s emotional and physical well-being, longevity, and sense of self. 2 The IDEAL Approach outlined in this guide can help you address the needs of patients experiencing diminished capacity and ensure guardianship is used appropriately.
Why is exploring alternatives to guardianship important? Because guardianship is an extreme measure that limits, and in some cases, takes away all of a person’s basic rights and liberties. Guardianship also has limits. • Guardians cannot force someone to comply with treatment or to stay in a care setting. • Guardianship does not make someone eligible for any special services or benefits. . • Guardians may need permission from the court before they can make certain decisions or act. Who should use this guide? Professionals in healthcare settings (hospitals, skilled nursing facilities, and other settings) including: • Health care providers (doctors, nurses, physician assistants, nurse
practitioners, therapists) • Medical social workers • Discharge planners • Attorneys for facilities
˜ Wright, Jennifer L., Guardianship for Your Own Good: Improving the Well-Being of Respondents and Wards in the USA, International Journal of Law and Psychiatry, Vol. 33, pp. 350–368 (2010); U.S. Government Accountability O°ce, The Extent of Abuse by Guardian is Unknown, But Some Measures Exist to Help Protect Older Adults, GAO-17-33, November 2016. ˛ Winick BJ., The Side E˝ects of Incompetency Labeling and the Implications for Mental Health Law, Psychology Public Policy & Law (1995).
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THE IDEAL APPROACH 3 4 STEPS Identify Evaluate Assess Limit IDEAL is shorthand for a four-step approach that professionals in health care settings can take to address the needs of patients who may be experiencing diminished capacity in a patient-centered way. It is a framework for identifying alternatives to guardianship, which can offer faster, less complicated, less expensive, and less restrictive means to address a patient’s unique personal or financial needs or challenges. Even in situations where guardianship may be unavoidable, The IDEAL Tool can help streamline the process and guard against an overly broad guardianship. This approach is also consistent with Maryland law, which treats guardianship as a last resort because it involves the removal of a person’s fundamental rights and liberties.
IDentify IDentify the patient’s specific needs or areas of concern Evaluate Evaluate the patient’s capabilities and resources Assess Assess alternatives to guardianship Limit Limit any guardianship to what is necessary to meet the patient’s unmet needs
˙ Adapted from the ABA “PRACTICAL Tool for Lawyers: Steps in Supporting Decision-Making,” 2016.
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THE IDEAL TOOL STEP 1: IDentify needs PATIENT NAME: IDentify the patient’s specific needs or areas of concern Start by specifying the patient’s needs and any reasons for concern. Consider: Personal decision-making ☐ Making decisions ☐ Communicating decisions ☐ Carrying out decisions (with or without assistance)
Community services and supports ☐ Case management ☐ In-home care ☐ Transportation assistance ☐ Home or vehicle modifications ☐ Durable medical equipment or assistive technology ☐ Residential services ☐ Behavioral support services ☐ Family caregiver training, support, respite care ☐ Other (specify):
Medical treatment and discharge planning ☐ Informed consent for medical treatment (including end-of-life care) ☐ Following a treatment plan ☐ Safe discharge or transfer Mental health/psychiatric treatment ☐ Consent to treatment (including medication management) ☐ Admission to mental health facility ☐ Psychiatric bed Managing assets or benefits ☐ Access to financial and other records ☐ Applying for benefits ☐ Spend down options (for benefit eligibility) ☐ Paying bills or managing incom e
Other issues/concerns ☐ Patient/family conflict ☐ Abuse, neglect, or exploitation ☐ Other (specify):
Observations & notes:
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THE IDEAL TOOL STEP 2: Evaluate Evaluate the patient’s capabilities and resources When exploring alternatives to guardianship, the focus should be on the patient’s decision making capabilities. They may be able to make some decisions but not others. The law recognizes that there are intermediate degrees of legal capacity, and that capacity is contextual – the capacity needed to select a health care agent is different from the capacity required to decide where to live. Rather than asking “Does the patient have capacity?” ask “Capacity for what?” In other words, focus on the nature of each decision that goes into addressing the patient’s identified needs and assess what the patient can do. Ensure the patient has access to any reasonable supports or accommodations they may need and ensure effective communication. See Appendix A for guidance on ensuring supports and accommodations. Be mindful of your obligations under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Maryland laws baring discrimination on the basis of disability. Screen for any temporary or reversible conditions or circumstances that may impact decision-making. If these are present, consider whether a decision can be postponed until their condition or circumstances change. Consider: • Medical conditions: Urinary tract or other infections, delirium, dehydration, malnutrition, vitamin deficiencies, traumatic brain injury, poor oral health, etc. • Pain: Chronic or acute pain • Sensory deficits: Poor vision, hearing loss, etc. • Medication: Side effects, polypharmacy • Psychological conditions: Stress, grief, depression, disorientation, etc. • Social/interpersonal factors: Family conflict, cultural barriers
Resources. To the extent a patient is unable to make their own decisions, approach the patient’s family members, friends, and other personal contacts as your partners in problem-solving. With education, coaching, and referrals to resources, they may be able help to address the patient’s needs. Some may be able to serve as a substitute decision-maker. Consider using open-source tools, databases, or private investigators to locate relatives or people who may have information about the patient’s preferences or resources. If there are conflicts among the patient’s loved ones, or if they are uncertain about which options are best, consider referring them to a mediator. Build and maintain effective working relationships with local agencies and community providers who can help you assess a patient’s needs or put needed supports and services in place. Key resources are your local Departments of Social Services (DSS) and Area Agencies on Aging (AAA) . They may be able to help you identify options for patients, assist patients and their loved ones, and arrange for services that may eliminate the need for guardianship. If guardianship is needed, any work you do with them before a petition is filed may help streamline the process and limit the scope of any guardianship. If the patient receives services from the Developmental Disabilities Administration (DDA) , work with their DDA Coordinator of Community Services or a supports planner to identify options or facilitate discussions. The local Behavioral Health Authorities can offer assistance with patients who need mental health services including addiction services. Additional resources are provided in Appendix E.
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THE IDEAL TOOL STEP 3: Assess alternatives Assess alternatives to guardianship
If the patient is unable to make a needed decision, the next step is to screen for alternatives to guardianship that exist or that can be put in place to address the patient’s unmet needs. Review the Alternatives to Guardianship Resource Guide for more information about the options. Need/Area of Concern Personal decision-making Medical treatment and discharge planning Options (examples) • Ensuring supports and accommodations • Supported decision-making • Advance directive for health care • Surrogate decision-making • Medical Order for Life-Sustaining Treatment (MOLST) Mental health/psychiatric treatment • Advance directive for mental health services • Voluntary admission to a mental health facility • Involuntary admission a mental health facility • Behavioral Health Administration (BHA) resources Managing assets or benefits • Withholding or withdrawal of medically ineffective treatment • Home & Community Based Services and informal options
• Financial power of attorney • Authorized representative for medical assistance • Representative Payees and U.S. Department of Veterans Affairs (VA) Fiduciaries • Achieving Better Life Experience (ABLE) accounts • Trusts including special needs trusts • Banking services • Specific transaction (Transaction authorized by court without appointing guardian)
• Mediation • Long-Term Care (LTC) Ombudsman • Reporting abuse, neglect, or exploitation
Other issues/concerns
Observations & notes:
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THE IDEAL TOOL STEP 4: Limit guardianship Limit any guardianship to what is necessary to meet the patient’s unmet needs
The guardianship process is complex and can take a while depending on the patient’s situation. Guardianship also has its limits. Guardians cannot force a patient to comply with treatment or stay in a care setting. Guardians have a duty to make independent decisions based on the patient’s preferences, values, and beliefs. They also may need court approval to make certain decisions. The IDEAL approach ( IDentify needs, Evaluate capabilities and resources, Assess alternatives, and Limit any guardianship) can help you avoid the need to petition for guardianship altogether or can help you present a petition that contains the necessary information about alternatives and limitations to the guardianship so that the court can consider the matter efficiently.
Even if the patient has needs that cannot be addressed by any combination of the alternatives to guardianship described in this guide, you have done important leg work. The court will need to know what alternatives to guardianship have been tried and failed before appointing a guardian. Documentation of your work here can help your facility’s attorney prepare a guardianship petition and present evidence. Being specific about the patient’s needs and capabilities can help your attorney advocate for a limited guardianship that is tailored to the patient’s needs. The patient will be represented by an attorney whose job it is to advocate for the patient’s wishes, protect their rights, and argue for any guardianship to be in its least restrictive form. Review the overview of Guardianship Law and Process to learn more. If you are asked to complete a certificate of incapacity, review the guidance on Capacity Assessments in Appendix B. Consider using the Guardianship Referral Worksheet in Appendix C .
Observations & notes:
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ALTERNATIVES TO GUARDIANSHIP RESOURCE GUIDE Outlined here are options for addressing the specific needs of or areas of concern regarding a patient who may be experiencing diminished capacity, followed by more comprehensive information about each option. Alone or together, these options can be used to help obviate the need for guardianship or be used to limit, modify, or terminate a guardianship. Alternatives can be put in place at any time and can be faster, less expensive, and more patient-centered than guardianship. You are likely familiar with most of these options. Be intentional about considering them as part of the IDEAL Approach. If these options cannot address a specific need, the patient may only need a limited rather than a full guardianship. If guardianship is necessary, consider using the Guardianship Referral Worksheet in Appendix C to
help your facility's lawyer. Need/Area of Concern Personal decision-making ☐ Making decisions ☐ Communicating decisions ☐ Carrying out decisions (with or without assistance) Medical treatment and discharge planning ☐ Informed consent for medical treatment (including end-of-life care) Mental health/psychiatric treatment ☐ Consent to treatment (including medication management) ☐ Admission to mental health facility ☐ Psychiatric bed Managing assets or benefits ☐ Access to financial and other records ☐ Applying for benefits ☐ Spend down options (for benefit eligibility) ☐ Paying bills or managing income ☐ Following a treatment plan ☐ Safe discharge or transfer
Options (examples) • Ensuring supports and accommodations • Supported decision-making
• Advance directive for health care • Surrogate decision-making
• Medical Order for Life-Sustaining Treatment (MOLST) • Withholding or withdrawal of medically ineffective treatment • Home & Community Based Services and informal options • Advance directive for mental health services • Voluntary admission to a mental health facility • Involuntary admission a mental health facility • Behavioral Health Administration (BHA) resources • Financial power of attorney • Authorized representative for medical assistance • Representative Payees and U.S. Department of Veterans Affairs (VA) Fiduciaries • Achieving Better Life Experience (ABLE) accounts • Trusts including special needs trusts • Banking services • Specific transaction (Transaction authorized by court without appointing guardian)
• Mediation • Long-Term Care (LTC) Ombudsman • Reporting abuse, neglect, or exploitation
Other issues/concerns ☐ Patient/family conflict ☐ Abuse, neglect, or exploitation
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PERSONAL DECISION-MAKING Making decisions, communicating decisions, or carrying out decisions
Observations and Notes
Options Ensuring supports and accommodations Supported decision-making
Ensuring supports and accommodations. Patients have the right to make informed decisions about their care, even if you don’t agree with those decisions. Be mindful of your obligations under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Maryland laws barring discrimination on the basis of disability. If you are presented with signs that a patient appears to be struggling with the ability to receive, understand, or process information, screen for any supports and accommodations they may need. Those may alleviate or eliminate any concerns about their ability to make, communicate, or effectuate the relevant decision(s). Appendix A provides additional guidance. Supported decision-making (SDM). Supported decision-making is an arrangement in which an individual chooses a ‘supporter’ or a network of ‘supporters’ to help them make, communicate, or effectuate important life decisions. A supporter must be someone the individual chooses. It can be a family member, friend, or someone else the individual trusts.4 The individual also chooses how supporters will assist in their decision-making process. Supporters cannot make decisions for or on behalf of the individual; the ultimate power to make decisions is with the individual. Supporters may ask questions, give the individual advice, explain things in a way that they understand, or serve as an effective communication accommodation. While SDM can be used by anyone, it can serve as an important accommodation for people with disabilities and older adults. SDM arrangements can be informal or a formal written agreements. There is no required format for written agreements, but Disability Rights Maryland offers a template. If a patient has a written SDM agreement, include a copy in their medical records . Md. Code, Estates & Trusts Art., § 18-101 et seq.
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There are many ways an individual can use SDM. Examples of how SDM can be used in healthcare settings include having a supporter: • Be with the patient during appointments or any discussions about their care (as an accommodation) • Take notes for or help the patient come up with questions to ask the care team • Help to ensure the patient understands information and options • Advocate for extra time, breaks, or other accommodations to ensure the patient has a meaningful opportunity to digest information or make an informed decision • Help the patient in weighing the benefits and risks of any treatment or procedure • Assist the patient in communicating their decisions • Help the patient complete paperwork or access relevant records
ˆ A supporter cannot be a minor; someone the individual has a protective order, peace order, or other order prohibiting contact against; or someone who has been convicted of ÿnancial exploitation.
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MEDICAL TREATMENT AND DISCHARGE PLANNING* Informed consent for medical treatment (including end-of-life care), following a treatment plan, safe discharge or transfer
Options Advance directive for health care Surrogate decision-making Medical Order for Life-Sustaining Treatment (MOLST) Withholding or withdrawal of medically ineffective treatment Home and Community-Based Services and informal options
Observations and Notes
*See Appendix E for the Maryland Attorney General’s resources for health care professionals and facilities. Competent adults have the right to make decisions about their own medical care. This includes the right to refuse treatment. In this context, “competent” means someone who is at least 18 years old and who has not been determined to be incapable of making an informed decision. When providing information to a patient about their care options, consider the personal
is any individual who is over the age of 18, who understands the purpose and effects of an advance directive, and who has not been deemed incapable of making an informed decision. An advance directive can be written or electronic. It can also be made orally to a health care provider. There are requirements for creating an advance directive and who can serve as a health care agent. The Maryland Attorney General’s Office also has resources for individuals and health care providers. WATCH VIDEO SCAN ME A health care provider can turn to a patient’s health care agent or refer to their living will if a patient’s attending physician and a second physician certify in writing that a patient is incapable of making informed decisions. If the patient is unconscious, only the written certification of their attending physician is required. Md. Code, Health-General Art., § 5-601 et seq. Surrogate decision-making. If the patient is incapable of making informed decisions about their medical care and does not have an advance directive for health care or their health care agent is unavailable, a health care provider can turn to a surrogate decision-maker to make medical decisions on the patient’s behalf. Maryland law defines who surrogates are and their priorities (a provider must start at the first level of priority and cannot move to the next unless
decision-making options discussed above and ensure compliance with relevant state and federal laws. Provide information in a format that is accessible to the patient. If the patient is incapable of making an informed decision about their medical treatment, look to any arrangements the patient made before losing that ability and any available legal representatives. Advance directive for health care. Sometimes referred to as a “health care power of attorney” or “medical power of attorney,” these are instructions for how medical decisions will be made or the types of treatment a person will receive if they later become unable to make their own decisions. An advance directive can appoint a health care agent who is authorized to make medical decisions during any period the person is unable to make their own informed decisions. Health care agents are sometimes called medical powers of attorney or health care proxies. An advance directive can also include a “living will,” which states the person’s treatment preferences, including their wishes regarding life support, CPR, ventilators, feeding tubes, and other life-sustaining treatment. Any competent person can voluntarily create an advance directive. In this context, a ‘competent person’
someone is not available).
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guardian, however, may have more authority than a guardian to make serious medical decisions. Some guardians must get court approval before they can consent to the provision, withdrawal, or withholding of treatment that involves a substantial risk of life to the patient. Md. Code, Health-General Art., § 5-605 Medical Order for Life-Sustaining Treatment (MOLST). A MOLST is a written medical order that outlines a patient’s preferences regarding life-sustaining treatment including CPR, blood transfusions, artificial ventilation, and medical tests. A MOLST can be created by the patient, their health care agent, a surrogate decision-maker, or a guardian of the person. It must be signed by a physician, nurse practitioner, or physician’s assistant. It should also be included in the patient’s medical records and be kept with the patient during admission or discharge to a health care facility. For more information and resources for patients, families, and providers visit marylandmolst.org. Md. Code, Health-General Art., § 5-608.1 Withholding or withdrawal of medically ineffective treatment. Physicians and physician assistants are not required to provide treatment that they believe is medically ineffective. Medically ineffective treatment is defined as treatment that, to a reasonable degree of certainty, will neither prevent nor reduce the deterioration of an individual’s health or prevent their impending death. If the patient’s physician, and a second physician, certify in writing that a treatment is considered medically ineffective under generally accepted medical practices, the patient’s attending physician can withhold or withdraw the treatment. If they decide to do so, the patient, their agent, or their surrogate must be notified. If the patient has a guardian, the guardian may need to get court approval before consenting to the withholding or withdrawal of medically ineffective treatment. The amount of time it takes for a guardian to get such approval varies. Md. Code, Health-General Art., § 5-611; Md. Code, Estates & Trusts Art., §13-705 Home and Community-Based Services (HCBS) and informal options. Home and Community-Based Services and informal options allow a patient to be safely discharged to their community. They include:
Surrogate Priorities: 1. A court-appointed guardian 2. A spouse or domestic partner (even if the couple has been separated for years) 3. Adult children 4.Parents 5. Adult siblings 6. A close friend or relative who is competent and who signs an affidavit (a statement under oath) stating: • t hat they are a close relative or close friend, and • specific facts and circumstances that show that they have known the patient for enough time to know their beliefs, wishes, activities, and health WATCH VIDEO SCAN ME Multiple people can share decision-making responsibility. For example, a patient may have multiple adult children who need to work together to make decisions. If they cannot reach an agreement, your facility’s Patient Care Advisory Committee can review the situation and make a recommendation. A class of individuals with shared surrogate decision-making authority (e.g., a group of siblings), can execute an agreement that appoints one or more class members to act as the patient’s surrogate. A surrogate must make decisions based on what the patient would want if they could decide (substituted judgment). If the patient’s wishes are unknown or unclear, then the surrogate must act in the patient's best interests and consider a variety of factors when making decisions. These factors include the patient’s relevant religious and moral considerations and past behavior and conduct towards the treatment at issue. Surrogates cannot authorize a patient’s sterilization or treatment for a mental disorder. A surrogate who is not a court-appointed
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• Case management services and options counseling • Supported housing, group homes, and assisted living facilities • In-home aide services (for personal care, chores, other (activities of daily living) • In-home emergency response system • Home delivered meals, group dining programs, and grocery delivery services • Adult day care programs and senior centers • Prescription delivery services or supports • Assistance with medical equipment, supplies, or non-emergency medical transportation • Assistive technology and home modifications • Peer supports and independent living skills training • Informal or professional assistance with money management • Assistance with personal needs from family, friends, and others in the patient’s community (check-ins, errand running, reminders, transportation to appointments or stores, etc.) The availability of options depends on the patient’s needs, location, Medicare/Medicaid eligibility, and other factors. Support planners, service coordinators, local
Departments of Social Services, and Area Agencies on Aging offices can help assess needs and identify appropriate community resources. Options counseling may also be available to Medicare beneficiaries through the State Health Insurance Assistance Program (SHIP) and to Medicaid beneficiaries through Maryland Access Point (MAP). Ensure the patient has access to any needed supports and accommodations (see Appendix A ), including effective communication supports, when explaining their rights. Advise them on what to expect during the discharge process and what is needed to address their needs. Include those who know the patient best in discussions about potential services as appropriate. With education and support, the patient, family members, and other loved ones can assist in addressing barriers or needs. This may require multiple meetings, additional time for services and supports to be put in place, and de-escalating potential tensions between the patient, family, friends, support persons, or staff. When conflicts or care planning become an issue, consider mediation (discussed below) to help refocus everyone involved on shared goals for the patient.
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MENTAL HEALTH/PSYCHIATRIC TREATMENT Consent to treatment (including medication management), admission to mental health facility, psychiatric beds
Options Advance directive for health care Voluntary admission to a mental health facility Involuntary admission to a mental health facility Behavioral Health Administration (BHA) resources Advance directive for mental health services. Sometimes referred to as a “mental health care power of attorney,” these are instructions regarding how mental health decisions will be made and treatment preferences if a person later becomes unable to make informed decisions about their own care. This type of advance directive can name an agent who is authorized to make decisions during any period the person is incapable of making their own. It can also include specific instructions or preferences about: • Medication • Treatments including electroconvulsive therapy (ECT), transcranial magnetic stimulation (TMS) • Mental health providers, programs, and facilities • Experimental treatment or trials • Information sharing with third parties and visitors • Other special considerations Like an advance directive for health care (discussed above), any competent adult can voluntarily create an advance directive for mental health services. An advance directive can be written or electronic. There is no required format, but the Behavioral Health
Observations and Notes
Administration and Mental Health Association of Maryland have templates. It can also be made orally to a health care provider. Md. Code, Health-General Art., § 5-602.1 Voluntary admission to a psychiatric hospital. A competent person who is at least 16 years old can be voluntarily admitted to a psychiatric facility. In this context, competent means that the person: • Has a mental disorder that is susceptible to care or treatment, • Understands the nature of a request for voluntary admission, • Can give continuous consent to being held at the facility, and • Is able to request release from the facility. With appropriate supports and accommodations, a patient may be able to voluntarily participate in the admission process. Md. Code, Health-General Art., § 10-609 Involuntary admission to a mental health facility. Guardianship is not needed to involuntarily commit a person to a mental health facility. In fact, a guardian does not have authority to involuntarily commit someone under guardianship to a mental facility. If the patient needs but does not consent to admission to a mental health facility, any individual with a legitimate interest in the patient’s welfare can apply to a facility for them to be involuntarily admitted. 15
The application must be on the facility’s form and include certificates from a) two physicians, or b) one physician and one psychologist, psychiatric nurse practitioner, licensed certified social worker-clinical, or licensed clinical professional counselor. The certificate must contain certain information and be based on the clinician’s personal examination of the patient, which must occur within a week of signing the certificate or within 30 days of when the facility receives the application. There are conditions under which a facility can accept an application and other requirements if the patient is age 65 or older. If a patient presents a danger to the life or safety of themselves or others, a clinician, peace or law enforcement officer, and others can petition for an emergency evaluation. If the petition is granted, the patient will be transported to an emergency facility for an emergency evaluation, and a physician will determine whether they meet the requirements for involuntary admission.
Within 12 hours of any involuntary confinement, the patient must receive forms in plain language notifying them of their involuntary admission, their right to consult with an attorney of their choice, and the availability of legal services. The patient has the right to request a hearing to dispute the admission, which must be held within 10 days from the patient’s initial confinement, and to appeal the outcome of that hearing. Md. Code, Health-General Art., §§ 10-613 – 10-633 Behavioral Health Administration (BHA) resources. The Behavioral Health Administration provides services and supports to individuals with mental health disorders, substance abuse disorders, and co-occurring disorders. The agency’s Behavioral Health Hospital Coordination Dashboard provides real-time information about the availability of psychiatric beds in hospitals, including inpatient psychiatric beds and crisis beds for short-term stabilization services. Your local Department of Health Behavioral Health Administrator can also assist in finding available beds .
IDEAL
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MANAGING ASSETS OR BENEFITS Access to financial and other records, applying for benefits, spend down options (for benefit eligibility), paying bills or managing income
Options Financial power of attorney Authorized representative for medical assistance Representative Payees and U.S. Department of Veterans Affairs Fiduciaries Achieving Better Life Experience (ABLE) accounts Trusts including special needs trusts Banking services Specific transaction (Transaction authorized by court without appointing guardian)
Observations and Notes
Under some circumstances, refusal to recognize a valid POA can result in financial penalties. If a patient has a POA, they likely do not need a guardian of the property. Agents can assist with paperwork associated with discharge or transfer, apply for benefits, and handle other financial matters. Agents have different levels of knowledge and experience. They may need information about options and resources to help them decide how to address the patient’s specific needs. Effective communication is key. Md. Code, Estates & Trusts Art., § 17-101 et seq. (Maryland General and Limited Power of Attorney Act) Authorized representative for medical assistance. An authorized representative is an individual or organization that can act on behalf of an applicant for or recipient of Medical Assistance (MA). They can help the patient apply or establish eligibility for MA, complete annual redeterminations, appeal denials or terminations, and communicate with the MA program. Even if the patient is unable to complete these tasks, with or without assistance, they may have the level of capacity needed to designate another person or organization to serve as their authorized representative. While a form to designate an authorized representative is available, any signed writing designating an authorized representative is acceptable. 17
Financial power of attorney. A financial power of attorney is a legal document that gives another person (an agent or “attorney-in-fact”) legal authority to make decisions for or handle financial or business affairs on behalf of another person (the principal). The principal creates the document, names the agent, defines the agent’s powers, and designates what property or affairs the agent can manage. In Maryland, anyone who is at least 18 years old and competent (understands what the document is, what powers they’re giving their agent, and what property is covered by the financial POA) can create a POA. There are rules about who can be an agent and what the document needs to include. There are forms that are sometimes referred to a “statutory power of attorney” forms that can be used. Other states may have different requirements. WATCH VIDEO SCAN ME The principal also decides when the agent’s authority goes into effect. For example, a POA can go into effect right away or when the principal is determined to be incapacitated. The POA is meant to ensure that the principal’s wishes, values, and preferences are respected.
Finally, if a patient or their agent fails to apply for MA, a facility providing care may, without requesting the appointment of a guardian, petition the appropriate circuit court for an order requiring the resident or their agent to seek assistance from the MA program or to cooperate in the eligibility determination process. If the authorized representative needs access to financial or other records that must be submitted with the MA application, they may need a court order. Consider a specific transaction (discussed below) if the patient or someone else authorized to access those records does not or cannot furnish them. Md. Code, Health-General Art., § 19-344; COMAR 10.01.04.12 & 10.09.24.04 Representative Payees and U.S. Department of Veterans Affairs (VA) Fiduciaries. These are individuals or organizations appointed to manage income or benefits on behalf of a beneficiary who is unable to due to illness or disability. The Social Security Administration (SSA) and Office of Personnel Management (OPM) have representative payee programs. A representative payee for the Department of Veteran Affairs is called a “VA Fiduciary.” Some private pension companies also have similar programs. A guardian is not needed to manage these types of benefits. Each agency has their own application and program requirements. Achieving Better Life Experience (ABLE) accounts. If a spend down is needed for the patient to qualify for Medicaid or other income-based public benefits (SSI, SNAP, subsidized housing, etc.), an ABLE account may be an option. It is a type of savings account for disability-related expenses. Contributions to an ABLE account will not be counted for purposes of establishing or maintaining a person’s eligibility for income-based benefits. A person is eligible to be a “beneficiary” of an ABLE account if they developed a qualifying disability before the age of 26.5 States have their own ABLE programs with different requirements and contribution limits . In Maryland , a guardian can but is not needed to create or manage an ABLE account. A beneficiary over the age of 18 can establish their own account, or they can select a person to establish one on their behalf. If they are not
If the patient does not have capacity to designate an authorized representative, any of the following people have legal authority to serve as one: • A surrogate decision-maker (discussed above) • A person appointed to make legal or medical decisions on behalf of the patient (e.g., an agent under a financial power of attorney or advance directive • An attorney or paralegal hired by the patient • A personal representative or someone who has applied in good faith to become one • A current guardian or someone who in good faith petitions to become one If none of the above options exist, certain individuals or organizations can serve as authorized representative for an “Applicant Without Representative Who Lacks Capacity to Appoint a Representative” if they declare under oath that: • They are in good faith acting in the best interest of the patient • The patient lacks legal capacity • To the best of their belief, no other individual or organization is willing or able to act on the applicant or recipient’s behalf • The individual, the organization or any director, employee, officer, or employer of the organization does not have a direct financial interest in the disposition of the MA application or discloses whether such an interest exists
˘ The age of eligibility increases to 46 e˝ective January 1, 2026.
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Specific transaction (Transaction authorized by court without appointing guardian). A specific transaction is a court that authorizes or directs a third party to complete an action or series of actions related to another’s person’s property. A specific transaction can only be ordered if the court determines that there is a legal basis for guardianship. This means that a petition for guardianship must be filed, and the court must determine that 1) the person does not have capacity to manage their property and affair effectively, and 2) they have or may be entitled to property or benefits that require proper management. If the court finds a legal basis, it can order a specific transaction as an alternative to a full guardianship of the property. This would allow the person to have their needs met without stripping them of their rights. Estates & Trusts Art., § 13-204 Specific transactions may be helpful for patients who have a limited need that cannot be met by another alternative to guardianship. Examples of specific transactions include: • Authorizing access to the patient’s financial records (e.g., bank records needed to apply for medical assistance) • Applying for or recertifying a person’s eligibility for benefits • Setting up direct deposit or automatic bill payment • Restricting another person’s access to the patient’s accounts • Selling property to help the person become eligible for Medicaid or other income-based benefits
able to establish one or select a person to do so on their behalf, a legally authorized representative can. An agent under a financial power of attorney can establish and manage an account. If the beneficiary does not have an agent, the following people, in order of priority (i.e., if one category does not exist, the next category can), may be able to establish or maintain an ABLE account: • A guardian or conservator. •Spouse
•Parent •Sibling • Grandparent • Representative payee appointed by the Social Security Administration
These individuals cannot serve as a legally authorized representative if the beneficiary has obtained a peace or other protective order against them, or if they have been held civilly or criminally liable for financial exploitation. 26 U.S.C.A. § 529A; Md. Code, Education Art., § 18-19C-01 et seq. Trusts including special needs trusts. Trusts are legal arrangements in which someone, called a trustee, holds and manages property for the benefit of another person, called the beneficiary. A guardian can but is not needed to create a trust. A guardian is also not needed to manage property that is held in trust. There are different types of trusts. They can be general or for a specific purpose. Special Needs Trusts are specifically for people with disabilities. Property held in this type of trust does not count against a person for purposes of qualifying them for Medicaid or other income-based public benefits (SSI, SNAP, housing subsidies, etc.). Md. Code, Estates and Trusts, § 14-404 Banking services. If the patient or their authorized representative has trouble paying bills on time or managing income, banking services, including direct deposit, automatic bill payment, credit freezes, authorized signers, and accounts with shared access can be set up. If the patient or their representative is unable to or unwilling to set up these services, a specific transaction may be an option.
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OTHER ISSUES/CONCERNS Patient/family conflict, abuse, neglect, exploitation
Observations and Notes
Options Mediation Long-Term Care (LTC) Ombudsmen Reporting abuse, neglect, or exploitation
Long-Term Care (LTC) Ombudsmen. Long-Term Care Ombudsmen serve as independent advocates for assisted living and nursing home residents. They receive, investigate, and find ways to address resident’s complaints about their care. They can educate residents, families, and others. While they are advocates for residents only, they may be helpful partners in resolving conflicts or improving communication with a resident. Reporting abuse, neglect, or exploitation. Familiarize yourself with the signs of abuse, neglect, and exploitation and mandated reporting requirements. If you suspect a vulnerable adult (a person who is at least 18 years old and lacks the physical or mental capacity to provide for their daily needs) is being abused , neglected , or exploited, there are agencies that can investigate or respond. Which agency will depend on the source or location of the alleged harm. Call 911 if someone is in immediate danger.
Mediation. Mediation is a way to resolve conflicts or explore options with the assistance of a trained, neutral professional, called a mediator. Mediators help people have difficult conversations by guiding a discussion, facilitating the sharing of information, identifying what is important to each person, and finding solutions that everyone can support. Mediation may be helpful in resolving disputes with patients or families. It can also be used to explore alternatives to guardianship that can meet a patient’s needs. Mediation is faster and less expensive than guardianship and other court processes. Courts are also increasingly turning to mediation to resolve conflicts that give rise to a guardianship petition or as a means to dismiss the case or to limit, modify, or terminate a guardianship. WATCH VIDEO SCAN ME Mediation is a voluntary process, meaning a person cannot be forced to participate. It is also confidential, which means that what is said in mediation cannot be used in court and the mediator cannot be called to testify. Mediation allows participants to come up with more flexible and creative solutions than are possible if a court is involved. Source/Location of Harm Community (family member, friend, etc.) Abuse of assisted living or nursing home resident Financial exploitation Abuse in a licensed or federally certified facility or by a Developmental Disabilities Administration provider Medicaid fraud and abuse or neglect of adults in assisted living facilities and facilities that receive Medicaid funds
Options
Contact a local Adult Protective Services office or call 1-800-91-PREVENT (1-800-917-7383). Contact a local Adult Protective Services office or call 1-800-91-PREVENT (1-800-917-7383). Contact the Office of Health Care Quality. You can file a complaint online or call 410-402-8108. Contact the Maryland Attorney General’s Medicaid Fraud Control Unit at 1-888-743-0023 or email MedicaidFraud@oag.state.md.us. Contact the local Long-Term Care Ombudsman. 20
ADULT GUARDIANSHIP LAW AND PROCESS
• A guardian of the property handles financial affairs such as paying bills, collecting income, filing taxes, and applying for benefits or services. The guardianship court process that involves several steps and strict requirements. These requirements may seem burdensome but remember, guardianship results in the deprivation of a person’s fundamental civil rights and liberties. This cannot be taken lightly. How long the process takes will depends on the court and patient’s unique facts and circumstances.
If you determine that there are no less restrictive options available to meet a patient’s demonstrated needs, guardianship may be necessary. Guardianship is a process in which a court appoints someone (a guardian) to make personal or financial decisions on behalf of an adult who is unable to because of disease or disability. The court can appoint a guardian of the person, a guardian of the property, or both. • A guardian of the person makes non-financial decisions for things like housing, medical care, clothing, food, education, and everyday needs.
Party The Petitioner
Role The person or organization that files the paperwork (the petition) requesting the appointment of a guardian of the person or property. The petitioner’s job is to prove to the court that 1) there is a legal reason (ground) to appoint a guardian, and 2) that there are no less restrictive alternatives available. A lawyer can file for guardianship on behalf of the petitioner, or someone can file pro se, meaning without a lawyer. There are forms available at www.mdcourts.gov/guardianship . The person for whom guardianship is sought. This person is also called the “respondent.” The word “alleged” is key because there is a presumption that the person has a capacity until proven otherwise. If the court appoints a guardian for the ADP, they will then be referred to as the “disabled person.” If the ADP does not have a lawyer of their own choosing, the court will appoint one to represent them. These lawyers are sometimes referred to as the ADP’s “court-appointed attorney” or “court-appointed counsel.” Their role is analogous to that of a criminal defense attorney. Their job is to advocate for the wishes and preferences of the ADP, protect the rights of the ADP, and make sure the petitioner proves their case. They can request documents (including medical records) and subpoenas , and depose witnesses. In court, they will present evidence, call witnesses, and make their arguments. They may seek to have the guardianship case dismissed, advocate for a limited guardianship (discussed below), or advocate for a certain person to serve as guardian.
The Alleged Disabled Person (ADP)
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Interested Persons
• Any creator of a fiduciary estate • Anyone else designated by the court (people or organizations such as healthcare facilities not listed above can ask the court to recognize them as interested persons) • Government agencies paying benefits to the ADP (Social Security Administration, U.S. Department of Veterans Affairs, the Office of Personnel Management, etc.) • Any supporter under a supported decision-making agreement • The local Department of Social Services (for adults under the age 65) • The local Area Agency on Aging (for adults age 65 and older) • In guardianship of the property cases: • Any person who receives income from the ADP or their property • Any fiduciary and co-fiduciary of the ADP’s estate Individuals or agencies that play an important role in a guardianship. Only interested persons can petition for guardianship or serve as a guardian. They are entitled to be notified when a guardianship petition is filed and about what happens in the case. They can challenge the guardianship at any point, present evidence, call witnesses, and request records. After a guardian is appointed, they can ask the court to review the guardianship at any time. Interested persons are defined by law and include: • The alleged disabled person (ADP) • Any existing guardian, fiduciary (including an agent under a financial power of attorney), or health care agent • The ADP’s spouse, parents, children, heirs at law
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