1. lacks sufficient understanding or capacity to make or communicate responsible personal decisions, including provisions for health care, food, clothing, or shelter, because of any mental disability, disease, habitual drunkenness, or addiction to drugs; AND 2. no less restrictive form of intervention is available that is consistent with the person's welfare and safety. Grounds for Guardianship of the Person To establish that a person needs a guardian of the person , the petitioner must prove that the ADP: 1. is unable to manage effectively the person's property and affairs because of physical or mental disability, disease, habitual drunkenness, addiction to drugs, imprisonment, compulsory hospitalization, detention by a foreign power, or disappearance; AND 2. has or may be entitled to property or benefits which require proper management. Grounds for Guardianship of the Property To establish that a person needs a guardian of the property, the petitioner must prove that the ADP: In this context, “capacity” refers to the ADP’s
court will consider a number of factors including a prospective guardian’s: • Nature and length of the guardian’s relationship with the ADP • Capacity to serve as guardian (skills, abilities, knowledge, availability, other demands, etc.) • History of any disqualifying criminal offense • Willingness to complete orientation and training programs • Other relevant factors The court will first look to people who were chosen by the person under guardianship (e.g., a health care agent or someone designated by the person), family members, and other people who know them. Guardians need to follow certain guidelines and base their decisions on the person’s values, wishes, and preferences. This is easier when the guardian knows the person under guardianship and is a more person-centered option. If there is no available or willing family member or person known to the ADP who can serve as guardian of the person, the court will appoint a public guardian. • Local Departments of Social Services serve as public guardians for adults under the age of 65. • Local Area Agencies on Aging serve as public guardians for adult age 65 or older.
decision-making capacity. In other words, the diagnosis of an illness or disability must affect the ADP’s ability to make decisions or handle their personal or financial affairs. Even if a person does have a condition that affects their decision-making capacity, guardianship is not necessary if there are alternatives to guardianship available to meet their needs. A list of alternatives is included in the Alternatives to Guardianship Resource Guide . Just because a person needs one type of guardian (e.g., a guardian of the person) does not mean they need the other (e.g., a guardian of the property). The ADP and other interested persons can cross-examine the petitioner’s witnesses and present their own evidence or witnesses. If the judge or jury is not persuaded by the petitioner’s case, the court can dismiss the case without appointing a guardian. If the judge or jury is persuaded that the petitioner has proved all the elements of their case, the next step is for the judge to select the guardian(s). Selection of a Guardian The petitioner can make recommendations for who should serve as guardian of the person or property. The ADP or another interested person can propose a different guardian or challenge the petitioner’s suggestion(s). The court will consider the recommendations but is not bound by them. Maryland law sets priorities for who can serve as guardian and the
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