GUARDIANSHIP

Guardianship of the Person

Guardianship of the person is a circuit court designation that a person can make health care decisions for the disabled. But, there are certain requirements. First, you must prove that the person is disabled. This is often done through the use of physician certificates. However, other health care professionals may also provide their expert opinion. But, there is also a second requirement, a requirement that is commonly forgotten. That requirement is: “is there a least restriction available.”

Is there a least restriction available

In years past, the Courts would review the certificates and take a cursory look at the second factor – least restrictive alternative. But, no longer. Courts are now actively looking at the facts to determine if it is necessary to appoint a guardian of the person when there are other alternatives. Normally, the two alternatives that are available are: 1) Natural Surrogacy or 2) an advance directive.

Natural Surrogacy

Natural Surrogacy provides are the Maryland statutory rights that exist without an advance directive. That is, if a person no longer is able to make decisions on their own, is there a person who can. The first step, of course, is the person needs to be determined to have lost the ability to give “informed consent.” Once that is established, then there is a pecking order of who can make those decisions. Usually, with the appointment of a guardian, the lack of informed consent test is met.

But, the second issue is why can’t the surrogate step in rather than a guardian. That is where you need to have the appropriate response to the court. This could range from that the surrogate decision make is making decisions not in the disabled’s best interest. Or, it could be the health care surrogate decision maker is themselves impaired. Another possible explanation could be the alleged disabled does not believe they are disabled. As such, they may not listen to the health care surrogate decision make. These are all legitimate reasons why the least restrictive alternative may not work.

Health Care Agent in an Advance Directive

A person may be chosen by the alleged disabled in an Advance Directive to make health care decisions for them. This person may be able to make health care decisions in lieu of guardianship. Often, this fact could be a reason that guardianship is not granted. But, of course, just because a health care agent exists does not mean that a guardian should not be appointed. Just like the health care surrogate issues, the same issues can apply to a health care agent. That is, the health care agent is not acting in the alleged disabled’s interest. Or, the health care agent is impaired. Or, it could be the alleged disabled does not believe they are disabled.

Guardianship Law

The law surrounding guardianship is complex. My strong advice is to seek legal counsel with questions before pursuing guardianship.