How to Become a Legal Guardian to a Relative With Mental Disabilities

image of double-image woman depicting mental disability

Becoming a legal guardian to a relative with mental disabilities can take several different routes. Regardless of what path you take, the guardian will end up with responsibilities over the ward that serve their best interest. Ultimately, the goal of a guardianship is to help maintain the ward’s general well-being while also facilitating their independence and self-reliance. A guardianship can occur for both minors and adults with mental disabilities, and can differ depending on the type of mental disability.

For example, an adult relative who has suffered significant brain damage from a car crash will end up with a different guardianship scenario compared to a young relative with Downs Syndrome.

We are going to take a look at some of the rules and procedures in Maryland and Washington D.C. as it relates to becoming a legal guardian to a relative, both minors and adults, with mental disabilities.

Guardianship in Washington D.C.

Initiating a guardianship for both incapacitated adults and minors is performed through the same probate court division in Washington D.C. The responsibility of a guardian in these situations is to manage the ward’s financial resources which involves managing both tangible and intangible property, as well as income and additional benefits.

As it relates to guardianship over adults, the person attempting to become a guardian is considered a petitioner. This is because they will be petitioning the court and essentially asking them for permission to become a guardian. The petitioner will bear the responsibility of proving the would-be ward meets the criteria of an incapacitated adult. The first requirement is that the individual is over 18 and meets the incapacitated criteria under Washington D.C. law.

That criteria is located in D.C. Code sec. 21-2011(11), and describes an incapacitated adult as someone who is over the age of 18 and “whose ability to receive and evaluate information or to communicate decisions is impaired to such an extent that he or she lacks the capacity to manage all or some of his or her financial resources or to meet all or some essential requirements for his or her physical health, safety, habilitation, or therapeutic needs without court-ordered assistance or the appointment of a guardian or conservator.”

The petitioner can prove this criteria is met by providing medical evidence or testimony. If the court does not find that the individual is incapacitated, guardianship will not be granted. Therefore, it is critical to provide ample evidence. It is also helpful to discuss your petition with an experienced attorney in order to ensure your evidence will meet the court’s threshold for proving incapacitation.

The necessary documents and forms you will need to fill out are located at this Washington D.C. judiciary website. Additionally, a $45 filing fee will be required.

As it relates to guardianship over children, there are some similarities. The process involves completing five forms as follows: (1) a petition for appointment as guardian of the estate of the minor, (2) a bond, (3) consents from the minor’s parents (if they do not both sign the petition for appointment), (4) a proposed order, and (5) a consent to the appointment of the guardian signed by the minor if the minor is age 14 or older. After this packet is filed, the petitioner, their attorney, and the minor child will have a brief interview with the Assistant Deputy Register of Wills. A $45 filing fee will be required.

Guardians in Washington D.C. are expected to act in the best interests of their ward. The guardian’s orders will depend on the ward’s circumstances. For minors, permanent guardians will be expected to be involved in the daily upkeep of maintaining their minor ward’s well-being.

Guardianship in Maryland

The process to apply for guardianship in Maryland is similar to the process in Washington D.C. When petitioning to become a guardian over an incapacitated adult, the petitioner must file with the court and provide adequate documentation to prove incapacitation.

According to Maryland law, the grounds for determining incapacitation are as follows:

  1. The person is unable to manage the person’s property and affairs effectively because of physical or mental disability, disease, habitual drunkenness, addiction to drugs, imprisonment, compulsory hospitalization, detention by a foreign power, or disappearance; and
  2. The person has or may be entitled to property or benefits which require proper management.

After a petition is made, the court will review evidence and testimony to see if the threshold is met.

As it relates to establishing guardianship over a minor, the following grounds must be met:

  1. A minor owns or is entitled to property that requires management or protection; or
  2. Funds are needed for the minor’s support, care, welfare, and education and protection is necessary or desirable to obtain or provide funds.

For minors, there must also be an attempt to gain consent from both parents. However, in some scenarios, the parents may be completely out of the picture and unreachable. If that is the case, the petitioner must file an affidavit with the court stating as such.

Types of Maryland Guardians

In Maryland, there are three different types of guardians that can be appointed by the court. They are as follows:

  • Guardian of the Person
  • Guardian of the Property
  • Guardian of the Person and Property

A guardian of the person tends to the ward’s general daily needs in order to foster their health and well-being. This can involve basic actions such as providing housing, clothing, food, and arranging for transportation to different services. Depending on the unique circumstances of the guardianship, the court order will provide details on what services shall be provided.

A guardian of the property takes on a fiduciary responsibility to care for the ward’s financial assets. This includes managing their income, property, paying taxes, and other financial responsibilities.

A guardian of the person and property combines the responsibilities of the two previously mentioned guardianships.

Regardless of what type of guardianship is created, all actions taken by the guardian must suit the best interests of the ward.

Contact The Law Offices of Thomas Stahl

Creating a guardianship for an adult or minor involves dedicated attention to detail and a keen understanding of the rules of procedure for the jurisdiction. Gathering evidence and testimony to ensure your guardianship is appointed so you may care for your loved one is a significantly important responsibility. In order to ensure your case will be seen favorably by a judge, it is wise to retain experienced attorneys who have successfully overseen guardianship cases. If you would like a consultation regarding your situation, contact The Law Offices of Thomas Stahl at (410) 696-4326.

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