Appointing a guardian for a disable person requires a court proceeding. Often, when a guardian is needed for a family member, there is general agreement who should become the guardian. To have that person appointed guardian, however, a court proceeding is still required. Often if a family is acting in the best interest of the disabled person the court proceeding may seem “routine.” Nevertheless, there are rules that the Judge follows to make sure that a guardianship is necessary and that the disabled individual’s rights are protected
In other cases, there may be a hotly contested proceeding over whether a guardian needs to be appointed and who should be that guardian. In a recent, and hotly contested case, the Court of Special Appeals looked at 2 important constraints dictated by the guardianship statute: (1) the requirement that a guardianship will not be established if a less restrictive remedy is available, and (2) that the statutory priority of who will be the guardian will only be skipped over for “good cause” before the appoint of someone at a lesser level. Meek v. Linton, __ Md,App. ___ (2020 WL 2070363) (April 29, 2020) (Woodward).
The Meek case involved a contested guardianship proceeding between a sister and a brother for control of mother’s living arrangement and management of her property due to her incapacity from dementia.
The first issue was whether an agent duly appointed and acting under a health care directive is per se less intrusive than a formal guardianship proceeding. The sister was named by her mother as the health care agent under a health care directive signed while the mother was competent. The sister predictably argued that an agent under a health care directive is an arrangement much less restrictive than a formal guardianship and that she is willing and capable to act as her mother’s agent. The statuary provision, however, reads that a guardianship of the person is appropriate only if “no less restrictive form of intervention is available that is consistent with a person’s welfare and safety.” Est. & Trusts § 13-7-5(p).
The underlying dispute between the sister and brother was whether their mother should remain in her house with caregivers cobbled together during the daytime or whether their mother should be placed in a special dementia unit of a nursing facility where she would receive 24-hour supervised care. In the Circuit Court for Dorchester County, the brother successfully argued that staying in her home was key to mother’s welfare where she had adequate supervision and where she had always said that she wanted to be with her husband, her dog, and among familiar surroundings. The mother’s attending physician supported that position from a medical standpoint because in his opinion she was receiving adequate care and that in his experience patients often would decline rapidly if moved to unfamiliar surroundings. The physician also testified that the mother expressed an interest of never being put in such a facility but remining home if at all possible – never in a “box” were her words.
Instead of a narrow focus of which mode of intervention is more restrictive, The courts (both the Circuit Court and the Court of Special Appeals) looked to how the health care agent would exercise her authority and whether that exercise would result in a greater restriction on their mother than the path implemented by her brother. On the face of it, of course, the appointment by a person of a health care agent and the agent acting under the authority which was given by that person while competent appears less restrictive than an appointment by a court of a guardian of the person. A guardianship involves a significant liberty infringement. The Court of Special Appeals relied, in part, on an earlier decision authorizing a guardianship to force a patient at Clifton T. Perkins Hospital to take medications. In that case the Court of Special Appeals held that “the issue is [not] whether a less restrictive form of intervention exists, rather, the issue is ‘whether a less restrictive alternative is available and consistent with (the patient’s) own welfare and safety needs.'” The Matter of Meddings, 244 Md.App. 204 (2019). The Court concluded that it should not limit its inquiry simply to finding whether a less restrictive form of intervention may exist but that the less restrictive form of intervention must be consistent with that person’s welfare and safety.
Aside from determining that there is no less restrictive intervention than a guardianship, the other key issue is who should be the guardian. Maryland statute establishes priorities for the appointment of a guardian of the person and the health care agent appointed by the disabled person while competent is a very high priority for appointment. Est. & Trusts § 13-707(a)(2). The statute, however, does not need to be strictly followed and “for good cause, the court may pass over a person with priority and appoint a person with a lower priority.” Est. & Trusts § 13.707(c)(1)(ii). Here, the only basis for having the trial court pass over the sister is the disagreement as to the mother’s health care and where she should receive such care.
The only earlier reported Maryland case that had addressed the issue of good cause in the appointment of a person with a lower priority was Mack v. Mack, 239 Md. 188 (1993). In Mack, the contested guardianship proceeding was between the father of his comatose son and the wife of the son over who should be guardian of the person. The underlying issue was whether someone in a persistent vegetative state could be permitted to die by stopping tube feeding when the patient’s desires are not known. The lower court denied the wife (who had a priority) to be guardian of the person of her husband because she was going to transfer the guardianship to Florida which permitted the stopping of the feeding tube. At the time, Maryland law did not permit such intervention. The lower court awarded the father the guardianship because to permit the wife to become guardian would be to permit her to implement a health care decision contrary to the settled common law of Maryland at the time. Essentially it was what the guardian was going to do once becoming guardian that established the good cause not to appoint the wife.
On appeal, the Court of Appeals reversed the part of the circuit court’s opinion skipping over the wife’s higher priority solely because of the differences on the removal of the feeding tube saying that there was no finding that she could or would not fulfill the duties of guardian. It then held that without a clear direction from the son while competent whether he would have wanted removal of the tube, however, it was not permitted under the Maryland common law. On its face, the Mack decision would seem to favor the sister’s position in Meek. The Court of Special Appeals, however, pointed to the statement in Mack that although the statutory preference in the appointment of a guardian may seem mandatory and absolute it “is always subject to the overriding concern of the best interest of the ward.” Indeed, the relationship of the Court in guardianship cases is always ultimately subject to the ward’s best interest. “Lest sight be lost of the fact, we remind all concerned that a court of equity assumes jurisdiction in guardianship matters to protect those who, because of illness or other disability, are unable to care for themselves. In reality the court is the guardian, an individual who is given that title is merely an agent or arm of that tribunal in carrying out its sacred responsibility.” Kicherer v. Kicherer, 285 Md. 114 (1979).
The Meek Court determined that it was in the mother’s best interest to pass over the priority of the sister as guardian because of the sister’s stated intention to make the institutional placement. In Meek, the Court below and the Court of Special Appeals found a great deal of support for the mother staying at home. Contested guardianships are fact-intense hearings. The Circuit Court finding of facts was critical to the decision on appeal. Aside from being an important decision under the guardianship statute, it demonstrates the importance of establishing a solid factual basis at the evidentiary hearing for the Circuit Court to make its decision.
The Maryland estate litigation attorneys at Franke, Sessions and Beckett LLC understand the process involved and are prepared to handle both contested and uncontested guardianships. For over 35 years, our law firm has concentrated on the law of estates and trusts – including a wide variety of fiduciary litigation. We handle guardianship cases (contested or uncontested), disputes over the meaning of estate planning documents, arguments involving personal representatives or trustees, challenges to documents based on a lack of capacity or undue influence. On a regular basis, we try cases before the Orphans’ Courts and the Circuit Courts of various Maryland counties. We also take appeals to the Court of Special Appeals and the Maryland Court of Appeals. We are not, however, a general litigation firm. We focus on Will, Trust, and other fiduciary litigation. We have deep experience in and knowledge of the Maryland law of estates and trusts, concentrating as a firm on fiduciary litigation, planning and administration. In order to schedule a consultation with an experienced Maryland estate litigation attorney, call 410-263-4876 to get in touch with our Annapolis office.
