COVID-19 Information Update
On Monday, March 15, 2021, the Judiciary returned to Phase 4 of its Phased Reopening Plan.
The Statement from the Maryland Judiciary Concerning Guardianships of Adults and Minors provides clarifications related to guardianship emergencies, expedited guardianship matters, and court-appointed guardians.
The Maryland Judiciary’s Guidance for Court-Appointed Guardians of the Person and Property provides guidance for court-appointed guardians about caring for the person under the guardianship during the COVID-19 emergency.
Topics on this page
- Who is an interested person?
- Notice Requirements
- Reasons to Intervene
- Intervention by an Interested Person
- Request for Appearance by Physician or Psychologist
Interested persons play a pivotal role in guardianship proceedings. For example, only an interested person can petition for guardianship. Even interested persons, who are not petitioners, may invoke the jurisdiction of the court at any time to resolve questions concerning the guardianship estate or its administration.
The Maryland Court of Special Appeals has stated that the rights of an interested person are “inextricably bound up” with the rights of an alleged disabled person.
Typically, interested persons create the conflict that turns an uncontested guardianship into a contested matter. In doing so, interested persons become a party to the guardianship proceeding and have all rights associated with it, including the right to discovery.
Read the Law: Md. Code, Estates and Trusts Article § 13-203
Read the Cases: Law v. John Hanson Savings and Loan, Inc., et al., 42 Md. App. 505 (Court of Special Appeals 1979); In re Sonny Lee, 132 Md. App. 696 (Court of Special Appeals 2000)
Maryland law defines certain classes of individuals as “interested persons,” while others must intervene in the guardianship proceeding and seek the court’s designation as such.
The following classes of individuals are defined in the law as interested persons who have standing to participate in their own right in proceedings for guardianship of the person or property:
- the alleged disabled person;
- the alleged disabled person’s guardian;
- a fiduciary appointed for a disabled interested person, or other person who has assumed responsibility for the interested person;
- any governmental agency paying benefits to the alleged disabled person (This may include the Social Security Administration, the United States Office of Personnel Management, the Veterans Administration, Medicaid, and any governmental entity paying a retirement, annuity or other benefits to the alleged disabled person.);
- a person, agency, or corporation nominated by the alleged disabled person if the disabled person was 16 years old or older when the alleged disabled person signed the designation and, in the opinion of the court, the alleged disabled person had sufficient mental capacity to make an intelligent choice at the time the alleged disabled person executed the designation;
- a health care agent appointed by the alleged disabled person in accordance with Title 5, Subtitle 6 of the Health - General Article;
- the alleged disabled person’s spouse;
- the alleged disabled person’s parents;
- the alleged disabled person’s children;
- adult persons who would be the alleged disabled person’s heirs if the alleged disabled person were dead (“Heir” is defined as “any person who would be entitled under the law of this State to inherit property if, at the applicable time, the owner of the property had died intestate.” Maryland Rule 10-103(e). See also Md. Code, Estates & Trusts, § 3-101, et seq. regarding the laws on intestate succession.);
- a person, agency, or corporation nominated by a person caring for the alleged disabled person;
- for adults less than 65 years old, the director of the local department of social services;
- for adults 65 years old or older, the Secretary of Aging or the director of the area agency on aging;
- the Department of Veterans Affairs as directed by Code, Estates and Trusts Article, § 13-801; and
- any other person, agency, or corporation considered appropriate by the court.
In a guardianship of only the property, the following additional classes of individuals are “interested persons” under the law:
- a current income beneficiary of the fiduciary estate;
- a fiduciary and co-fiduciary of the fiduciary estate; and
- the creator of the fiduciary estate.
Anyone not defined in the law as an interested person who desires to be involved as a party in a guardianship matter must file and serve a motion to intervene in accordance with Maryland Rule 2-214, within the time period provided in the show cause order, stating the grounds for the intervention and accompanied by a copy of the proposed pleading setting forth the articulating reasons for intervening in guardianship. If the intervention is granted, the order granting intervention shall designate the intervenor as an interested person. After that, the newly designated interested person shall promptly file the pleading and serve it upon all parties.
Read the Rule: Md. Rule 10-103
An interested person must be served with a copy of the guardianship petition, show cause order, and “Notice to Interested Persons.” The court should not appoint a guardian unless all interested persons have been served with these documents and have had the opportunity to respond to the guardianship petition.
In order to object to the appointment of a guardian, or otherwise participate in guardianship proceedings, an interested person must file a pleading responding to the petition for appointment of guardian, within the time period provided in the show cause order, stating why the relief requested in the petition should not be granted.
Whether as an interested person at law, or an intervening party, the reasons an interested person may intercede in a guardianship proceeding are as diverse as the families that find themselves in these cases. Disputes involving interested persons typically do not have to do with whether a guardian should be appointed, but rather who should be appointed guardian.
During the guardianship proceedings, interested persons have the right to:
- object to the need for a guardian;
- object to the appointment of the Petitioner as guardian; or
- allege that the disabled person may incur damages as a result of the appointment of a guardian.
An interested person may also present to the court any material and/or relevant information which may affect the guardianship proceedings.
After the appointment of guardian, and for the duration of the guardianship, an interested person may invoke the jurisdiction of the court at any time to resolve questions related to the guardianship estate or its administration. For example, if an interested person has concerns that a guardian of the property may be misappropriating funds, or that the medical needs of a disabled person are not adequately being met by a guardian of the person, an interested person perpetually has standing to raise their concerns with the court. In addition, an interested person is expressly authorized by statute to file a petition:
- requiring bond, security, additional bond, or security in an estate where bond can be required,
- requiring an accounting of the administration of the estate,
- directing distribution;
- removing the guardian and appointing a successor guardian; or,
- granting other appropriate relief.
Read the Case: Law v. John Hanson Savings and Loan, Inc., et al., 42 Md. App. 505 (Court of Special Appeals 1979)
Generally, a court’s consideration of a motion to intervene is a two-step process.
- Step 1: Does the party have a right to intervene?
- Step 2: If the party has the right to intervene, the court will then consider the substance of the motion to intervene.
Intervention of Right - A person can intervene in an action when:
- the person has an unconditional right to intervene as a matter of law; OR
- the person claims an interest relating to the property or transaction that is the subject of the action, and the person is so situated that the disposition of the action may, as a practical matter, impair or impede the ability to protect that interest unless it is adequately represented by existing parties.
In determining the adequacy of representation, the court must consider whether the potential intervener has an interest to protect which necessitates intervention and that such interests are not otherwise adequately protected in the proceeding.
Read the Rule: Md. Rule 2-214(a)
Read the Cases: Citizens Coordinating Comm. on Friendship Heights, Inc. v. TKU Assocs., 276 Md. 705 (Court of Appeals 1976)
The interests of the applicant for intervention should be initially classified as being adverse, similar, or identical to that of each of the existing parties. Then, the court should apply the following “interest-analysis” test to determine whether the lack of an adequate representation requirement should be applied.
- If the potential intervenor’s interest is not represented or advocated to any degree by an existing party or if the existing parties all have interests that are adverse to those of the proposed intervener, then the intervenor’s is unrepresented by existing parties, and the court should allow the intervention.
- If the potential intervenor’s interest is similar, but not identical to that of an existing party, then the court will ordinarily allow the intervention, unless it’s clear that another party will provide the adequate representation.
- If the potential intervenor’s interests are identical to those of an existing party or if an existing party is required by law to represent the potential intervenor’s interests, then there must a compelling showing to demonstrate why the existing parties do not provide adequate representation.
Read the Cases: Maryland Radiological Soc’y, Inc. v. Health Servs. Cost Review Comm’n, 285 Md. 383 (Court of Appeals 1979)
Permissive Intervention - A person may be permitted to intervene in an action when the person’s claim or defense has a question of law or fact in common with the action.
A governmental entity may be permitted to intervene in an action when:
- the validity of a constitutional provision, charter provision, statute, ordinance, regulation, executive order, requirement, or agreement affecting the moving party is drawn in question in the action; or
- when a party to an action relies for ground of claim or defense on such constitutional provision, charter provision, statute, ordinance, regulation, executive order, requirement, or agreement. In exercising its discretion, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
The court must consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the existing parties.
Read the Rule: Maryland Rule 2-214(b)
Occasionally, someone, not designated under the law as an interested person, may object to the need for guardian, contending that the alleged disabled person still has capacity to make or communicate responsible decisions concerning his or her care, and can still manage his or her affairs effectively. More often, however, someone could request to intervene to defend his or her designation as health care agent or durable power of attorney; thereby removing the need for a guardian. Maryland law precludes the appointment of a guardian of the person where a less restrictive alternative exists to the appointment of a guardian.
Although there is no similar requirement for the appointment of a guardian of the property, an attorney-in-fact duly appointed by the alleged disabled person in a valid durable power of attorney could intervene to assert his or her rights to manage the affairs of the alleged disabled person without the necessity of the appointment of a guardian. However, unlike a health care agent, an attorney-in-fact is not a statutory interested person to a guardianship. Therefore, if the attorney-in-fact does not meet another definition of an interested person, the attorney-in-fact must file a motion to intervene in the guardianship.
Read the Law: Md. Code, Estates & Trusts, § 13-705
Interested persons may request that the physician or psychologist that prepared the certificates appear at the trial. An interested person is not required to file an objection to the guardianship petition in order to request the physician's or psychologist's appearance.