People are often surprised when they find out that guardianships are contested legal matters. They assume that they just need to fill out a form and they will be appointed by the Court to serve as guardian for their parent or child because that person has dementia (now called Major Neurocognitive Disorder) or autism, respectively. A guardianship, however, is a contested matter where the subject of the guardianship, the alleged disabled person, has an attorney appointed for her and is able to vigorously challenge the appointment of a guardian over them. This contested procedure is to ensure that the due process rights of the alleged disabled are fully protected.

“No person shall be… deprived of life, liberty, or property, without due process of law.”[1] It is a fundamental principle enshrined in the Declaration of Independence and given further protections under the Bill of Rights. An alleged disabled person is entitled to due process prior to the Court appointing a guardian over her. This is because a guardianship strips that person of the most basic and fundamental rights. A guardian of the person controls where a person lives and is able to invade that most fundamental right to privacy between her and her physician. Depending on the guardianship Order, the guardian of the person can also make life or death decisions including whether to withhold medical treatment. A guardian of the property can sell a person’s house or transfer their money such that the ward can no longer exercise control over their property. In a very real sense, a guardian of person and property can deprive a person of life, liberty and property.

Due Process is the concept that legal proceedings must be conducted with set rules and principles. There are two basic forms of due process: procedural and substantive. Procedural Due Process is the idea that the court or other arm of the government has to follow fair procedures prior to take away those basis liberties. Substantive Due Process is the idea that there are certain fundamental rights that are not necessarily enumerated in the Constitution or the Bill of Rights, and that there are limits on what the government can regulate. In the context of a guardianship, the focus is on Procedural due process, to make sure that the alleged disabled person is afforded a fair trial prior to their most basic rights being stripped from them.

In Maryland, the law presumes competence until that issue has been adjudicated.[2] Prior to entering a decision limiting someone’s fundamental rights to make choices for herself, a Court must find by clear and convincing evidence that she is unable to make or communicate responsible decisions concerning her person.[3] Even if a guardian of person is appointed for the alleged disabled person, that is not evidence of her incompetency.[4] Competency is defined as the “mental ability to understand problems and make decisions.”[5] Where a Court sees fit to appoint a guardian, then it is instructed by the statute to grant “only those powers necessary to provide for the demonstrated need of the disabled person.”[6]

In addition, individuals have a right to self-determination concerning medical treatment.[7] The burden is on the Petitioner in a guardianship case to demonstrate that the alleged disabled does not have competency to make decisions concerning her fundamental liberties.[8]

An adult may have memory issues or a child may have special needs, but that alone is insufficient to take away their fundamental rights to make decisions that affect them personally without an adjudication as to their ability to make decisions for themselves. It is axiomatic that every person with a disability or special needs[9] does not require a guardian[10], so one’s disability or special needs status alone is insufficient to determine definitively that person is in need a guardian. This is why the courts impose a rigorous process where the alleged disabled person can challenge the guardianship.

Filing for guardianship may be a difficult process with unique challenges for those who do not handle these on a regular basis. If you believe that you need to file for guardianship, then call for a free consultation.

David A. (Andy) Hall, Esq.
King|Hall LLC
5300 Dorsey Hall Drive
Suite 107
Ellicott City, Maryland 21042
410-696-2045

andy@kh.legal

 

[1] U.S. Const. amend. V.

[2] See Slicer v. Griffith., 27 Md. App. 502, 510 (1975).

[3] ANNOTATED CODE OF MARYLAND, Estates & Trusts Article, §13-705.

[4] Est. & Trusts, §13-706.

[5] BLACK’S LAW DICTIONARY [3rd Pocket Ed.] (2006).

[6] Est. & Trusts, §13-708(a).

[7] Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 273, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) (quoting In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985): “On balance, the right to self-determination ordinarily outweighs any countervailing state interests, and competent persons generally are permitted to refuse medical treatment, even at the risk of death.”).

[8] See Murel v. 8212 5276, 407 U.S. 355, 362, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972)(quoting Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332 1339, 2 L.Ed.2d 1460 (1958) “Where one party has at stake an interest of transcending value—as a criminal defendant his liberty—this margin of error is reduced as to him by the process of placing on the other party the burden of producing a sufficiency of proof . . . .”).

[9] According to Pew Research, 12.6% of the U.S. population has a disability. “7 Facts about Americans with disabilities,” Kristen Bialik (July 27, 2017), http://www.pewresearch.org/fact-tank/2017/07/27/7-facts-about-americans-with-disabilities/ (accessed on September 26, 2018).

[10] There are approximately 1.3 million active guardianships in the United States with a total population of approximately 325.7 million. See BEYOND GUARDIANSHIP: TOWARD ALTERNATIVES THAT PROMOTE GREATER SELF-DETERMINATION, National Council on Disability, 65 (March 22, 2018) https://ncd.gov/sites/default/files/NCD_Guardianship_Report_Accessible.pdf (accessed September 26, 2018).