What is Guardianship of a Minor?
In Maryland, when you file a Petition for Guardianship of a Minor, you are requesting that the court appoint you or someone else as a guardian of a child under 18 years of age. Guardians manage the affairs of another person (sometimes called a “ward”) who is unable to do so. In the case of minors, they may not be considered competent to make certain decisions because of their age.
Types of Guardianship
There are two types of guardianship of a minor: “Guardianship of the person” and “Guardianship of the property”.
Guardianship of the person: This type of guardian will make day-to-day decisions about the minor’s health care, food, clothing, living arrangements, and other important matters. They can be appointed if neither parent is capable of serving, and no testamentary appointment (in a will) has been made. Consent of each parent shall be obtained if possible. If parental consent cannot be obtained, an affidavit must be filed showing attempts to obtain it and/or why it could not be obtained. A minor can designate a guardian of the person after their 14th birthday.
Guardianship of the property: This type of guardian acts as a fiduciary and will make financial decisions on behalf of the minor. A minor can designate a guardian of the property after their 16th birthday. Guardians of the property of a minor determine whether the minor needs any distributions for their general well-being or for educational purposes, and petition the court for permission to withdraw funds. They can be appointed if the court finds that:
- the minor owns or is entitled to property (for example: an inheritance, life insurance payout, lawsuit award, etc.) that requires management or protection, or
- the minor needs funds for support, care, and education and protection is necessary or desirable to obtain or provide funds.
Guardianship of the person and property: A person can be appointed to serve as guardian of both the person and property.
When Is a Guardian Needed?
A guardian is often appointed if a child’s parents have died, are incarcerated, or are otherwise unable to care for them. Sometimes a guardian is required for a minor to obtain medical treatment, or to enroll in a school system. Guardians who are family members or close family friends of the minor will often become guardians of the person and property.
Who Can File for Guardianship?
Under Maryland law, “interested persons” are eligible to file for guardianship of a minor and must be notified of a petition for guardianship. Interested persons are defined as:
- Any other heirs at law (those heirs that would inherit estate assets under Maryland intestacy law)
- Guardian (if appointed)
- Any person holding a power of attorney of the minor
- Minor’s attorney
- Any other person having assumed responsibility for the minor
- Any government agency paying benefits to or for the minor
- Any person having an interest in the property of the minor
- All other persons exercising control over the minor or the minor’s property
- A person or agency eligible to serve as guardian of the person of the minor
Pursuant to Md. Rule 10-205, the court must hold a hearing and give notice of the hearing to all interested persons, who are related to or otherwise concerned with the welfare of the minor, before ruling on a petition for guardianship of the person. Interested persons can object to the appointment by filing a response. As with custody cases, the court applies the “best interests of the child” standard in making guardianship decisions. The court can appoint more than one person to serve as co-guardians and share responsibilities.
Restrictions on Appointments
Guardians must complete state-mandated training before they can be appointed. There are also certain crimes that are considered disqualifying for a petitioner. Specifically, under Md. Estates and Trusts Art.§ 11-114:
(a) Unless good cause is shown for the appointment, a court may not appoint, as a guardian of the person of a minor or disabled person, a person who has been convicted of:
- A felony;
- A crime of violence, as defined in § 14–101 of the Criminal Law Article;
- Assault in the second degree; or
- A sexual offense in the third or fourth degree or attempted rape or sexual offense in the third or fourth degree.
(b) Unless good cause is shown for the appointment, a court may not appoint, as a guardian of the property of a minor or disabled person, a person who has been convicted of a crime that reflects adversely on an individual’s honesty, trustworthiness, or fitness to perform the duties of a guardian of the property of a minor or disabled person, including fraud, extortion, embezzlement, forgery, perjury, and theft.
Revocation & Termination
A minor’s designation can be revoked at any point until the guardianship is granted, and parents have the right to revoke their consent at any time. However, a guardianship can only be terminated by court order. Typically, a guardianship remains in place until the minor reaches 18 years of age.
Hiring an Experienced Attorney
Guardianship cases can be complex, especially when they are contested, so it is best to consult an experienced guardianship attorney who can guide you through the process. An attorney can also inform you of the legal duties a guardian has, such as periodic accounting.
If you have questions about obtaining guardianship of a minor, or someone has challenged your petition, contact BGS Law today.