PFA Tips: Alternatives to Guardianship

Download a printable version of “Alternatives to Guardianship”

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In many cases, guardianship is absolutely necessary to protect the person from harm and to administer property that is in the person’s name. However, it should be done only after other solutions have been considered.

What is adult guardianship?
Guardianship is a legal proceeding in which a petitioner (usually a family member or friend) asks the court to find that a person is unable to manage their own affairs effectively because of a disability. The court then appoints someone to act for that person and make decisions affecting the person, their property, or both.

Why would a person need a guardian?
A person may need a guardian if they are unable to make everyday decisions because of the effects of a disease or other disabling condition.

What are the different kinds of guardianship?
The court may either appoint a guardian of the person, a guardian of the property, or both. One person can serve as both guardian of the person and guardian of the property, or different people can take each role.

Additionally, in emergency cases, or in cases where an individual has no family member or friend to serve as guardian, a court may appoint a public guardian. In this situation, the court will appoint a public official or a publicly funded organization (such as the Maryland Department of Aging or the Maryland Department of Human Services’) to serve as legal guardian in the absence of a willing and responsible family member, or in the absence of resources to employ a private guardian.

In general, a guardian of the person makes decisions about a person’s medical care, maintenance of a residence, food, clothing, and other subjects that affect the person. In contrast, a guardian of the property typically makes decisions about a person’s money, income, property of any kind, stocks and bonds, and other financial matters.

What is the effect of a guardianship?
The appointment of a guardian has a substantial effect on an individual’s life. The adult may no longer have any authority to make decisions about their personal life or property because that authority has been delegated to a guardian, acting as a surrogate decision maker. This loss of personal freedom may have great significance, particularly when the person retains some decision-making ability, as with a person with an intellectual disability or mental illness.

However, under Maryland law, the appointment of a guardian “does not modify any civil right of the disabled person unless the court orders, including any civil service ranking, appointment, the right to apply for voluntary admission to a facility under §10-611 of the Health–General Article, and rights relating to licensure, permit, privilege, or benefit under any law.”

Why avoid guardianship?
In general, the laws regarding guardianship of the person state that a guardian should be appointed only if there is no less restrictive alternative. In many cases, guardianship is absolutely necessary to protect the person from harm and to administer property that is in the person’s name. However, other potential solutions should be considered before guardianship is sought.

Sometimes it is absolutely necessary to seek a guardian for a person who has a disability. In those cases, it is a welcome solution to a very difficult problem. In other cases, however, there may be alternative ways to solve the problem. These alternatives may not be the easiest course, or the least expensive, but there are several reasons why alternatives to guardianship are preferable.

What are reasons to seek alternatives to guardianship?
The appointment of a guardian is a serious measure. Guardianship has the potential to deprive a person of the right to make virtually all personal and financial decisions.

The law requires that a guardian of the person be appointed only when no less restrictive form of intervention is available which is consistent with the person’s welfare and safety. In addition, the petition requesting guardianship must contain information about what other alternatives have been tried and failed.

Filing for guardianship is costly and time consuming. Two attorneys (one representing the petitioner and one representing the alleged incapacitated person) must be paid. There may also be expert witness fees for the testimony of physicians, psychologists, or social workers. In some parts of Maryland, it will take several months for a guardian to be appointed, unless it is an emergency. Moreover, once appointed, the guardian will have an obligation to file annual reports with the court. At the end of the guardianship, a guardian must return to court and petition to terminate the guardianship.

In some instances, a guardian of the person may have less authority to make decisions about life-threatening medical treatment than does a close relative who is not a guardian. A guardian will have to return to court for approval to withhold medical treatment if appropriate. A close relative or friend could make the same decision without court involvement, after consulting with the person’s physicians.

Surrogate decision making
If a person does not have an advance directive, and is unable to consent to treatment, a surrogate decision maker can make health care decisions for them. A surrogate is a person who makes a decision for the incapacitated patient, based on what that person would have wanted. If a surrogate decision maker is available, it may not be necessary to appoint a guardian of the person. The use of a surrogate most often happens in emergency medical situations.

Surrogate decision makers
The law lists these individuals as surrogate decision makers, in the following order of priority:
• a guardian previously appointed by the court
• a spouse
• an adult child
• a parent
• an adult brother or sister
• a competent friend or other relative who can demonstrate they have maintained regular contact with the patient sufficient to be familiar with the patient’s activities, health, and personal beliefs.

Surrogates vs. guardians
A surrogate acting under the Health Care Decisions Act may have more authority than a guardian to make serious medical decisions. A surrogate decision maker who is not a guardian does not have to request the court’s permission before making such a decision. The surrogate will only have to consult with the person’s physicians and make a decision based on what they believe the person would have wanted.

The guardianship law states that a guardian must get the court’s approval for a medical decision that poses a risk to the life of the person except under two conditions:

1. If the person has executed an advance directive that authorizes the guardian to consent to the provision, withholding, or withdrawal of a medical procedure that involves a substantial risk to life but does not appoint a health care agent, the guardian does not have to seek the court’s permission to make such a decision. However, any other guardian will have to get the court’s approval before making a decision about life sustaining treatment.

2. If the guardian is within the class of individuals mentioned as surrogate decision makers and is determined by the court to be familiar with the personal beliefs, values, and medical situation of the disabled person.

Supported decision making
In 2022, the Maryland General Assembly passed the Supported Decision Making Act, providing a new less restrictive alternative to guardianship. The purpose of the Supported Decision Making Act is to assist adults by:

1. Obtaining support for the adult in making, communicating, or effectuating decisions that correspond to the will, preferences, and choices of the adult; and

2. Preventing the need for the appointment of a substitute decision maker for the adult, including a guardian of the person or property.

In practice, the Supported Decision Making Act provides for a supporter to gather information, provide explanations in simplified language, and assist the individual with implementing decisions.

Credit to:
“Guardianship and Its Alternatives: A Handbook on Maryland Law.”
Author Joan O’Sullivan, J.D., 2025 Edition
Handbook Co-Editors: Ellen A. Callegary, J.D., Rebecca Hall, J.D., James F. Silver, J.D.
A Joint Publication of the University of Maryland Francis King Carey School of Law & Health Care Program and the Maryland State Bar Association