Some adults with developmental disabilities cannot make certain personal, medical, or financial decisions without help. Guardianship or conservatorship may be appropriate when less restrictive forms of support are not enough.
A court creates these legal relationships. The court decides whether the adult needs assistance, who should provide it, and how much authority that person should receive.
Guardianship can significantly limit an adult’s legal rights. For that reason, families should consider the person’s abilities, available support, and less restrictive alternatives before asking a court to appoint someone.
What Is Adult Guardianship?
Adult guardianship is a court-supervised arrangement that gives another person authority to make certain decisions for an adult who has been found unable to make those decisions independently.
A guardian may be responsible for personal matters such as:
- Healthcare
- Housing
- Education or vocational services
- Support services
- Safety and daily care
The court’s order defines the guardian’s authority. A guardian should not assume that the appointment permits control over every part of the adult’s life.
What Is Conservatorship?
A conservatorship generally focuses on financial matters.
A conservator may be authorized to:
- Pay bills
- Protect assets
- Manage investments
- Maintain financial records
- Apply for certain benefits
- Complete required financial reports
The terminology varies by jurisdiction.
Guardianship Terminology in Maryland
Maryland generally uses two terms:
- A guardian of the person makes personal or healthcare decisions.
- A guardian of the property manages money and property.
Maryland does not generally use “conservator” as the primary title for the person managing an adult’s property in a guardianship proceeding.
The Maryland Courts adult guardianship resources explain the roles of guardians of the person and guardians of the property.
Guardianship Terminology in Washington, D.C.
The District of Columbia distinguishes between guardians and conservators.
A guardian generally handles personal and healthcare decisions. A conservator generally manages money and property.
The District of Columbia Courts provide information about both appointments for incapacitated adults.
What Happens When a Child With a Disability Turns 18?
Parents have legal authority to make many decisions for their minor children. That automatic parental authority generally ends when the child reaches age 18.
This change applies even when the adult child has an intellectual or developmental disability.
A parent does not automatically remain the adult child’s legal decision-maker. If the adult cannot make certain decisions independently, the family may need legal documents, decision-making supports, or a court appointment.
Begin Planning Before High School Ends
Many students with intellectual and developmental disabilities begin exploring adult decision-making during high school transition planning.
Under the Individuals with Disabilities Education Act, or IDEA, an eligible student’s individualized education program must address the transfer of educational rights before the student reaches the age of majority. The US Department of Education explains that students must be informed of the IDEA rights that may transfer to them.
School officials may raise guardianship as one possible option. However, a school does not decide whether guardianship is legally necessary. That decision belongs to the court after considering the adult’s abilities, needs, rights, and available alternatives.
Is Full Guardianship Necessary?
Not every adult with a disability needs full guardianship.
Some adults can make decisions with explanations, reminders, communication assistance, or help from trusted supporters. Others may need assistance in one area but remain capable in another.
For example, an adult may need help managing investments but still be able to choose where to live, consent to routine medical care, or make social and employment decisions.
A limited arrangement may preserve more of the person’s independence.
Less Restrictive Alternatives to Guardianship
Before pursuing guardianship, families should consider whether another option can meet the adult’s needs.
Possible alternatives include:
- Supported decision-making
- A durable financial power of attorney
- An advance healthcare directive
- A representative payee for Social Security benefits
- A special needs trust
- An ABLE account
- Banking assistance
- Family guidance
- Assistive or supported living services
- Limited guardianship
- A temporary guardian
- Authorization for a specific transaction
The Maryland Courts list several alternatives to guardianship, including powers of attorney, representative payees, trusts, ABLE accounts, banking services, and supported decision-making.
What Is Supported Decision-Making?
Supported decision-making allows an adult to keep legal decision-making authority while receiving help from trusted supporters.
Supporters may help the person:
- Gather information
- Understand available choices
- Compare possible consequences
- Communicate a decision
- Complete paperwork
- Work with service providers
The adult still makes the final decision.
Maryland Courts describes supported decision-making as an arrangement that maximizes a person’s decision-making ability through trusted supporters.
Supported decision-making may not be sufficient in every case. However, it should be considered before seeking a court order that removes legal rights.
Questions to Ask Before Pursuing Guardianship
The transition to adulthood requires planning and careful thought.
Families should consider the following questions:
- Does the adult need court-appointed guardianship?
- Can less restrictive alternatives provide enough support?
- Does the person need help with personal decisions, financial decisions, or both?
- Could a limited guardianship address the specific need?
- Who would be the best guardian or conservator candidate?
- Does the proposed guardian understand the responsibilities?
- Is there sufficient medical or other professional evidence concerning capacity?
- What rights would the adult retain?
- What reporting and training requirements would apply?
- Who could serve as a successor if the first choice can no longer act?
The answers will depend on the individual rather than the diagnosis alone.
How Does a Court Establish Guardianship?
A person seeking guardianship generally files a petition with the appropriate court.
The required evidence and procedure vary by jurisdiction. The process may involve:
- Filing a guardianship petition
- Providing medical or professional evaluations
- Notifying the adult and other interested people
- Appointing an attorney for the adult
- Holding a court hearing
- Determining whether the adult lacks capacity in specific areas
- Considering less restrictive alternatives
- Selecting an appropriate guardian
- Defining the guardian’s authority in a court order
The person who files the petition does not automatically become the guardian. The court determines whether guardianship is necessary and who is best qualified to serve.
Maryland provides official guardianship forms and filing resources. The proper forms depend on whether the request concerns guardianship of the person, property, or both.
Who Can Serve as Guardian or Conservator?
Parents, adult siblings, and other relatives are often considered for the role. A trusted friend or another interested person may also be appropriate.
If no suitable family member or friend is available, the court may appoint a qualified professional or public guardian when permitted.
The court may consider:
- The person’s relationship with the adult
- Familiarity with the adult’s needs and preferences
- Ability to perform the required duties
- Availability and location
- Financial responsibility
- Potential conflicts of interest
- Criminal or financial history
- Willingness to complete training and reports
Choosing the right person is important because a guardian or conservator may receive significant authority over another adult’s life or property.
What Does a Guardian or Conservator Do?
The specific responsibilities depend on the court order and the adult’s needs.
A guardian or conservator should exercise only the authority granted by the court.
Making Personal Decisions
A guardian of the person may make certain decisions about housing, medical treatment, education, support services, and daily care.
The guardian should consider the adult’s preferences and encourage participation whenever possible.
Managing Money and Property
A guardian of the property or conservator may pay bills, protect assets, manage investments, and maintain records.
The person may also need court approval before completing certain transactions.
Coordinating Care
A guardian may communicate with healthcare providers, residential programs, educators, case managers, and other professionals.
The goal is to help ensure that the adult receives appropriate services and support.
Advocating for the Adult
A guardian or conservator may advocate for the adult’s rights and interests.
Advocacy does not mean making every decision without consulting the person. The adult should remain involved to the greatest extent possible.
Completing Reports and Training
Court-appointed guardians are subject to continuing oversight.
Maryland requires guardians of the person and property to complete training. Courts may also require annual reports, financial accountings, inventories, and requests for approval before certain actions.
Maryland Courts provides resources and checklists for court-appointed guardians.
How Does Guardianship Affect Government Benefits?
An adult with a developmental disability may receive benefits or services through federal, state, and local programs.
A guardian, conservator, or other authorized person may need to help with applications, records, reporting, and eligibility reviews.
Relevant programs may include:
- Supplemental Security Income
- Social Security Disability Insurance
- Medicaid
- Medicare
- Housing assistance
- Vocational or community-based services
The guardian must understand that different programs have different rules. A court appointment does not automatically authorize the guardian to perform every function for every agency.
Social Security Representative Payees
The Social Security Administration may appoint a representative payee when a beneficiary cannot manage Social Security or SSI payments.
A representative payee receives and manages those benefits for the beneficiary. The payee must use the funds for the beneficiary’s current and future needs and maintain appropriate records.
The Social Security Administration selects the representative payee. A person does not automatically become the payee merely because that person holds a power of attorney or serves as a court-appointed guardian.
Protecting SSI and Medicaid Eligibility
Certain assets and distributions may affect eligibility for means-tested programs such as SSI and Medicaid.
A guardian or conservator should understand how:
- Earned and unearned income
- Cash gifts
- Inheritances
- Trust distributions
- ABLE account withdrawals
- Housing and food assistance
may affect benefits.
A properly drafted special needs trust may help hold assets for a person with a disability without causing the same eligibility problems that an outright inheritance could create.
Can Guardianship Be Limited or Changed?
Yes. Guardianship does not have to grant complete authority over every decision.
A court may create a limited guardianship that gives the guardian authority only in areas where the adult needs assistance. The adult retains other legal rights.
A guardianship may also be modified or terminated if:
- The adult’s abilities improve
- New support becomes available
- A less restrictive alternative becomes workable
- The guardian can no longer serve
- The guardian fails to perform required duties
- The adult moves to another jurisdiction
- The original court order no longer meets the adult’s needs
Formal court approval may be required to change the guardian, expand or reduce authority, transfer the case, or end the guardianship.
How Can a Special Needs Attorney Help?
A special needs attorney can evaluate the person’s circumstances and help determine whether guardianship is necessary.
The attorney can also help the family explore less restrictive alternatives.
If a court appointment is appropriate, an attorney may:
- Prepare and file the petition
- Identify the required medical evidence
- Provide notice to interested people
- Represent a party at hearings
- Explain the proposed guardian’s duties
- Address objections or contested issues
- Help prepare annual reports or accountings
- Request modifications when circumstances change
- Coordinate guardianship with trusts and benefits planning
The legal process varies by state and jurisdiction. Meeting filing requirements and deadlines is important.
An attorney can also help protect the adult’s rights and ensure that the requested arrangement is no broader than necessary.
Choosing the Right Level of Support
Guardianship and conservatorship can protect an adult who cannot make certain decisions independently. However, they also transfer important legal rights to someone else.
The goal should be to provide the support the person needs while preserving as much choice, dignity, and autonomy as possible.
Families should begin planning before the child turns 18. They should consider the person’s strengths, limitations, preferences, available supporters, benefits, and long-term needs.
We Can Help With Guardianship and Special Needs Planning
McDonald Law Firm helps individuals and families evaluate guardianship, less restrictive alternatives, special needs trusts, government benefits, and long-term planning.
Attorney André O. McDonald assists clients in Howard County, Montgomery County, and the District of Columbia with guardianship, special needs planning, estate planning, Medicaid planning, and related matters.
To schedule a consultation, call:
- Howard County: 443-741-1088
- Montgomery County: 301-941-7809
- District of Columbia: 202-640-2133
DISCLAIMER: THE INFORMATION POSTED ON THIS BLOG IS INTENDED FOR EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED TO CONVEY LEGAL, INSURANCE, OR TAX ADVICE.
