Adult Guardianship Process - 1. Alternatives to Guardianship
When an 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 the individual 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 alternatives prior to beginning guardianship proceedings. This article lists some, but not all, available alternatives.
Read the law: Md. Code, Estates and Trusts Article, 13-705
Alternatives to Guardianship: Introduction from the Maryland Courts
Topics on this page
- Financial Decisions
- Health Care Decisions
- Supported Decision Making
- Maryland State Agencies
- Private Services
Consider a power of attorney for handling money and property. A power of attorney is a document that gives someone legal authority to act for another person, including managing financial affairs such as money and property. However, there is a mental competency requirement to create a power of attorney, so if the alleged disabled person did not make plans before becoming disabled, this may not be an available option. Learn more about powers of attorney.
Alternatives to Guardianship: Powers of Attorney from the Maryland Courts
Representative payees are individuals or organizations appointed to manage income or benefits from government agencies and certain private pension companies. A representative payee acts on behalf of a minor or an adult who is unable to manage their benefits due to illness or a disability. The Social Security Administration, Office of Personnel Management, and some private pension companies have representative payee programs. A representative payee with the U.S. Department of Veterans Affairs is called a “VA Fiduciary.” The Fiduciary, like a representative payee, manages VA benefits on behalf of a veteran or other beneficiary who is unable to manage their own affairs because of age, illness, or disability. Each agency has their own application and program requirements.
Alternatives to Guardianship: Representative Payees from the Maryland Courts
Health Care Decisions
With an advance directive, which are sometimes called medical or health care powers of attorney, you give another person (called an “agent”) legal authority to make health or mental health care decisions on your behalf. Your agent will have access to your medical records, can talk to your care providers and will be able to make decisions about your care and treatment. Your advance directive can include instructions about the type of care you want to receive if you have a terminal or incurable condition and are close to death. This is referred to as a living will. Learn more about advance directives.
Alternatives to Guardianship: Advance Directives from the Maryland Courts
Surrogate Decision Making
The surrogate decision-making process allows your health care provider to turn to another person to make medical decisions for you if you become incapacitated and do not have an advance directive (or your health care agent is not available). Maryland law defines who qualifies as a surrogate. Your surrogate could be a court-appointed guardian, your spouse or domestic partner, you children or your parents. Your surrogate can only make health care decisions according to the duties and limits imposed by law. Learn more about surrogate decision making.
Alternatives to Guardianship: Surrogate Decision-Making from the Maryland Courts
Supported Decision Making
Supported decision-making is an arrangement in which you rely on the assistance of another person or a group of people, called supporters, to help you make some or all your decisions. A supported decision-making arrangement can be informal, or a formal agreement laid out in writing. You will identify your supporters, the type of assistance they will provide, and the type of decisions they will help you make. Your supporters can assist with your health care, education, housing, finances, or social activity decisions.
A supporter’s job is to help you understand situations and options. They help you research and consider options, answer questions, and offer advice, but they do not make decisions for you. When you have made a decision, supporters can help you communicate that decision, but they do not decide for you. You are the final decision maker.
Read the law: Md. Code, Estates and Trusts, Title 18
Alternatives to Guardianship: Supported Decision-Making from the Maryland Courts
Maryland State Agencies
Maryland Department of Human Services
The Department of Human Services has a Social Services to Adults program, which assists adults with limited capacities who wish to remain or become self-supporting and self-sufficient. Income eligibility requirements apply to adults with disabilities under the age of 65. For adults with functional disabilities due to advanced age (65+), there are no income eligibility requirements. Contact your local social services office for assistance. More information is available on their website.
Maryland Department of Aging
The Department of Aging provides a range of services and assistance, including Senior Care Services, for adults aged 65 or older. These services may include personal care, chore service, medications, medical supplies, adult day care, respite care, home delivered meals, transportation, and emergency response systems. There are certain eligibility requirements. Contact the Department of Aging for assistance and more information.
NOTE: These services are distinct from adult public guardianship, which is administered by these two departments. The local departments of social services administer adult public guardianships for alleged disabled persons aged 18-64. The Department of Aging administers adult public guardianships for those aged 65 and older.
There is a wide range of private services that may address the needs of the adult. Below are some examples.
- Alternative housing arrangements, such as assisted living programs, continuing care retirement communities, or group housing
- In-home aides
- Food delivery services
- Transportation services
Alternatives to Guardianship: Assistance with Personal Needs from the Maryland Courts
Alternatives to Guardianship: Banking services, ABLE Accounts, Trusts, and Specific Transactions from the Maryland Courts
Guardianship and Its Alternative, A Handbook on Maryland Law (Joan O’ Sullivan, J.D., Author; Virginia Rowthorn, J.D. and Ellen A. Callegary, J.D., 2011 Edition Handbook Co-Editors) has a detailed discussion of alternatives to guardianship that you can review.