Roles in Adult Guardianship Cases

FOR YOUR PRACTICE | ELDER AND ESTATE PLANNING LAW

Roles in Adult Guardianship Cases

BY HEATHER SUNDERMAN, ESQ.

Guardianship, also referred to as conservatorship in other states, is the establishment of a court-ordered relationship between an individual appointed to manage the property, legal affairs, health care, and/or personal decisions of an individual with a disability in need of protection or assistance.1

GUARDIANSHIPS HAVE BEEN IN THE NEWS regularly in today’s complex world. We have seen dramatic allegations of exploitation in cases involving Britney Spears, Michael Oher, and Casey Kasem, to name a few. As these cases demonstrate, guardianships can involve high-stakes, contentious litigation with numerous individuals battling for control. This article addresses the varied roles and corresponding ethical requirements that an attorney may have in these matters.

Guardianship, also referred to as conservatorship in other states, is the establishment of a court-ordered relationship between an individual appointed to manage the property, legal affairs, health care, and/or personal decisions of an individual with a disability in need of protection or assistance.1 In Maryland, a guardian of the property is in charge of financial and legal decisions regarding assets and property, whereas a guardian of the person is in charge of decisions such as health care and living arrangements.

Because guardianship often involves a person losing a number of fundamental rights, courts are bound by statutory procedures to ensure due process. By way of example, a petition requesting 1

A minor child may also be subject to a guardianship proceeding, and the rules differ slightly For the purposes of this article, I will focus on guardianships for adults with mental disabilities.

FOR YOUR PRACTICE | ELDER AND ESTATE PLANNING LAW

Roles in Adult Guardianship Cases

BY HEATHER SUNDERMAN, ESQ.

Guardianship, also referred to as conservatorship in other states, is the establishment of a court-ordered relationship between an individual appointed to manage the property, legal affairs, health care, and/or personal decisions of an individual with a disability in need of protection or assistance.1 84

MSBA.ORG | VOLUME 8 ISSUE 1

GUARDIANSHIPS HAVE BEEN IN THE NEWS regularly in today’s complex world. We have seen dramatic allegations of exploitation in cases involving Britney Spears, Michael Oher, and Casey Kasem, to name a few. As these cases demonstrate, guardianships can involve high-stakes, contentious litigation with numerous individuals battling for control. This article addresses the varied roles and corresponding ethical requirements that an attorney may have in these matters.

Guardianship, also referred to as conservatorship in other states, is the establishment of a court-ordered relationship between an individual appointed to manage the property, legal affairs, health care, and/or personal decisions of an individual with a disability in need of protection or assistance.1 In Maryland, a guardian of the property is in charge of financial and legal decisions regarding assets and property, whereas a guardian of the person is in charge of decisions such as health care and living arrangements.

Because guardianship often involves a person losing a number of fundamental rights, courts are bound by statutory procedures to ensure due process. By way of example, a petition requesting 1

A minor child may also be subject to a guardianship proceeding, and the rules differ slightly For the purposes of this article, I will focus on guardianships for adults with mental disabilities.

guardianship must meet the requirements set forth in Md. Rule 10-201 and/or 10-301. Only then will the court issue a show cause order, which must be served on the alleged disabled person,2 the counsel for the alleged disabled person, and all other interested persons.

Counsel for the Alleged Disabled Person An attorney for an alleged disabled person may be retained directly by the individual or appointed by the court. In Maryland, an adult who is the subject of the guardianship matter is referred to as the respondent.

The respondent is entitled to counsel as a matter of right.3 If they do not already have counsel of choice, the court must appoint counsel, generally from a list of approved attorneys who have demonstrated experience or training to handle these matters. The role of courtappointed counsel is the same as that of any privately

Under the Maryland Rules, an attorney appointed as counsel for an alleged disabled person is required to advise their client of the client’s rights in accordance with the petitioner’s notice advising of these rights.4

retained counsel, that is, to advocate for the goals of the client. This could mean that the attorney has to put aside their own preferences, values, and interests to focus on achieving the client’s objectives. The attorney retains the authority and control to determine the methods and legal avenues to obtain the client’s objective, but as an advocate, may not substitute their judgment for that of the client.

The representation of a respondent in a guardianship matter is bound by the same ethics rules as with any other attorneyclient relationship. When working with an individual who may have a cognitive impairment, the attorney must endeavor to treat the client respectfully, address the client directly, and not make assumptions about whether the client can understand the communications. This concept is explained in Md. Rule 19-301.14, which governs attorneys who are dealing with clients who may have diminished capacity.

The leading case regarding guardianships in Maryland is In re Sonny E. Lee, 132 Md. App. 696 (2000). This case is a “must read,” as the court explicitly addressed the role of courtappointed counsel, among other important guardianship issues.

There, Sonya Lee sought to become the guardian for her father, Sonny Lee, who had long-term alcohol dependence, which had left him severely ill and unable to work or to use his hands. Shannon Lee, another child of Sonny Lee, objected to Sonya Lee’s appointment.

Sonny Lee’s court-appointed attorney filed a report recommending that Sonya Lee be appointed his guardian, and notably, in direct opposition to his client’s stated wishes in court. Sonny Lee preferred his public defender attorney to serve as guardian instead of Sonya or Shannon Lee. Further, Sonny Lee’s attorney did not request a hearing on whether Sonny Lee was incapacitated and did not intend to have him testify on his own behalf. His right to jury trial was waived, and his counsel, who the court noted acted as an investigator or guardian ad litem, stated in her report that Sonny Lee was clearly disabled and that it would be harmful for him to testify.

Under the Maryland Rules, an attorney appointed as counsel for an alleged disabled person is required to advise their client of the client’s rights in accordance with the petitioner’s notice advising of these rights.4 If guardianship of the person is initiated, the court is required to hold a hearing, even if the matter is not contested. This is due to guardianship limiting important individual rights of autonomy, like the ability to make one’s own health care choices.

Once the guardianship order is entered, the respondent is then referred to as the “ward,” and the matter is concluded.5 The court can also re-appoint counsel for the ward if there are further proceedings, such as the review or termination of the guardianship. The re-appointment of an attorney is entirely discretionary and based on the best interests of the disabled person.6 Investigator In addition, the court is permitted under Md. Rule 10-106.2 to appoint an investigator. The investigator is required to review the facts alleged and to make a report to the

2 Note that it is becoming more acceptable to refer to a “person with disability” to focus on the person first rather than his or her challenges. In this article, I am using the term as it appears in the Maryland Code and Rules.

3 See Md. Code Ann., Est. & Trusts (hereinafter Est. & Trusts) § 13-705(d) (Supp. 2002) and Md. Rule 10-106.

4 See Md. Rules 10-203(a) and 10-204.

5 To comply with case timeline standards, the matter is statistically closed although the Court maintains oversight.

6 See Md. Rule 10-106.

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Counsel for Interested Person

court with their findings and recommendations. The court may specify the issues to be investigated in the matter at hand. Notably, the court is not bound by the investigator’s factual findings or recommendations. Because the court serves as the guardian of the ward, the investigator’s report is assigned an appropriate weight, but it’s the court’s responsibility to make the ultimate decision.

Counsel for Petitioner An attorney representing a petitioner serves a similar role as counsel for the plaintiff in civil litigation. The attorney files the petition, which opens the matter as an active case in the circuit court of the county where the alleged disabled person resides. The respondent must file an answer, and any interested persons also may file responses, by the deadline provided in the show cause order. The attorney for the petitioner may serve discovery, participate in alternative dispute resolution, and present evidence on behalf of their client.

A key feature of the attorney-client relationship is the ethical duty to keep a client’s confidences. There has been some lack of clarity regarding whether an attorney who represents a fiduciary can assert the attorney-client privilege on behalf of the client fiduciary, with litigants often taking different positions and the court having to determine if the privilege will apply.

Earlier this year, the Maryland General Assembly passed a new law that clarified that the attorney and fiduciary relationship is also protected by the attorneyclient privilege.7 7

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See SB 131/HB0065, effective October 1, 2026.

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An attorney may also serve as counsel for an interested person. Md. Rule 10-203(b)(2) requires that all interested persons be notified of the guardianship matter.

“Interested person” is defined in Est. & Trusts § 13101(k) and it includes the guardian, the heirs of the minor or disabled person, any governmental agency paying benefits to the minor or disabled person, or any person or agency eligible to serve as guardian of the disabled person, and anyone who has assumed responsibility for that person. Md. Rule 10-203(c) governs the form and content of notice that the petitioner must provide to interested persons. The rule permits, among other things, interested persons to object to the appointment of a guardian, and/or participate in the proceeding, by the dates and deadlines in the served show cause order. Interested persons may also participate in the proceedings, which may vary depending on whether they favor the guardianship, have personal knowledge that may be helpful to the court, oppose the choice of a guardian, or believe there should be no guardian at all.

An attorney representing an interested person is serving in the role of advocate for that interested person.

Guardian of the Person An attorney can also be appointed as guardian of the person, usually if the attorney had a long-standing and/or personal relationship with the ward. Otherwise, this role is usually filled by a family member. If a guardian of the person is appointed, they are required to complete an online training and then file a certificate of completion. The guardian is also required to file an annual report on the anniversary of the appointment.

The court has a form to be used for that purpose, and the record keeping and reporting to the court is not particularly onerous. While serving in that role, the guardian of the person will need to regularly visit and communicate with the ward, their medical professionals, individuals or agencies with care-taking duties, and make sure the ward’s needs are being met.

Depending on the extent of the ward’s disability and health conditions, the amount of time that this will take may vary dramatically.

Guardian of the Property If a guardian of the property is appointed, they must marshal the assets of the ward, manage them prudently, and file reports to the court as directed.

Shortly after the appointment, the guardian of the property must file an inventory and annual reports every year thereafter, including backup documentation

such as bank statements and receipts. The guardian of the property is entitled to a commission based on the amount of the assets being managed and the income produced. However, the available commission may not reflect the volume of work and effort, and it can be difficult to obtain court approval for a higher fee.

Government Agencies

In summary, guardianship proceedings, regardless of complexity, involve numerous individuals, attorneys, and agencies who must serve their roles in accordance with their experience, skill, and applicable ethical considerations. The system is organized to assist the court, the ultimate guardian, in protecting individuals in need of assistance.

The Social Security Administration, the Veterans Administration, the local department on aging, and the county Department of Health and Human Services may be identified as interested persons depending on the circumstances of the case. While the court may require that the petitioner serve the petition, supporting documentation, and show cause order on these agencies, they do not tend to take a significant role in the proceedings unless there are allegations of abuse or exploitation, or if it is anticipated that a public guardian may be serving.

If there is no one else able to serve, the local Department of Aging or Health and Human Services is appointed to serve.

____________ Heather Sunderman received her J.D. from the Washington College of Law (American University), and is a member of the Maryland State Bar Association.

She concentrates in wills, trusts, estate planning, probate, guardianships, and also has experience as a mediator and collaborative law practitioner. She is licensed to practice in Maryland, Virginia, and the District of Columbia. She would like to thank her colleague Amelia Marsden for her assistance with this article.

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