Maryland Guardianship Alternatives: Explore These Options Before Seeking Guardianship

Caring for an aging or disabled loved one often requires making difficult decisions about how to manage their affairs while preserving their independence.

For many families in Maryland, legal adult guardianship — granted by the Circuit Court — might seem like the only solution.

However, Maryland’s guardianship process can be complex, time-consuming, and invasive, often resulting in the person in need losing autonomy.

With proper estate planning, families can choose less restrictive alternatives to guardianship.

Maryland law offers several legal methods to support individuals who need assistance without court intervention, including:

1. Durable Power of Attorney for Financial and Legal Matters;
2. Advance Health Care Directive for Medical Decisions;
3. Revocable Living Trust for Asset Management.

If guardianship is unavoidable, read The Senior Soup’s comprehensive guide on approaching Maryland’s guardianship process.

Whether you’re a family member, caregiver, or friend, our alternative guide to Maryland guardianship will help you make informed decisions.

What is Maryland Guardianship?

Maryland guardianship is a legal process where the Circuit Court appoints a guardian to make decisions on behalf of an individual who cannot manage their own affairs due to incapacity.

The appointed guardian, granted authority over critical aspects of the person’s life, such as healthcare, finances, and personal decisions, often causes a significant loss of autonomy for the person subject to the guardianship petition.

While guardianship is sometimes necessary, it is a complex and invasive procedure.

That’s why exploring less restrictive alternatives that can provide the necessary support while preserving the individual’s independence is crucial.

A Common Reason for Seeking Guardianship: Incapacity Without Prior Legal Planning

Here are a list of reasons why someone might have to petition a Maryland Circuit Court for guardianship:

• Incapacity Without Prior Planning: An individual has become incapacitated and did not establish any advance directives, such as a Durable Power of Attorney or an Advanced Healthcare Directive, leaving no legal means for someone to manage their affairs;
• Lack of a Suitable Representative: An individual did not designate a suitable representative, such as a trustee or healthcare agent, and there is no one legally authorized to make decisions on their behalf;
• There’s a Dispute Among Family Members: There is significant disagreement among family members regarding who should make decisions for the alleged incapacitated person. A court-appointed guardian may be necessary to resolve these disputes;
• Protection Against Abuse or Exploitation: An individual may be vulnerable to abuse, neglect, or financial exploitation, and there is no existing legal mechanism to protect them. Guardianship may be necessary to ensure their safety and well-being;
• Mental Illness or Cognitive Decline: An individual has severe mental illness, dementia, or cognitive decline, rendering them incapable of making sound decisions about their personal care, finances, or medical treatment;
• Complex or Significant Assets: An individual has complex or substantial assets that require careful management, and no existing legal structure (such as a Revocable Living Trust) is in place to manage these assets;
• Medical Decisions in Crisis: An individual is facing a medical crisis and has not appointed a healthcare agent. In the absence of an Advance Healthcare Directive, guardianship may be necessary to make critical medical decisions;
• No Family or Friends Available: A Marylander may have no family members or friends willing or able to manage their affairs, necessitating the appointment of a court-appointed guardian;
• Disability in a Minor Turning 18: When a Maryland minor with a disability reaches the age of eighteen, they will no longer have a legal guardian under the law. To continue providing care and decision-making support, someone may need to establish guardianship;
• Legal Requirements for Certain Decisions: If no other legal authority exists, some decisions, such as consenting to certain medical procedures or selling real estate, may legally require a court-appointed guardian;
• Inadequacy of Less Restrictive Alternatives: Less restrictive alternatives, such as a Durable Power of Attorney or Revocable Living Trust, may be insufficient to meet the individual’s needs, particularly in complex or contentious situations.

Maryland Courts Look For Less Restrictive Alternatives Than Guardianship 

Maryland courts generally favor the least restrictive alternative when deciding on guardianship matters.

Someone petitioning a Circuit Court for adult guardianship must demonstrate that they have considered less restrictive options and that said options are either insufficient or inappropriate for the situation.

The alternatives discussed in this article — such as creating a Durable Power of Attorney, an Advance Healthcare Directive, or a Revocable Living Trust — are often ideal because they allow Marylanders to retain some degree of control over their lives.

These alternative solutions to Maryland guardianship are less invasive, offer greater flexibility, and can be re-tailored to meet your loved one’s specific needs without court intervention.

Exploring these guardianship alternatives can simplify the legal process if guardianship becomes absolutely necessary; it demonstrates to the court that you have made every effort to avoid the need for such an extreme measure.

Guardianship Alternative: A Maryland Durable Power of Attorney (POA)

A Maryland Durable Power of Attorney is a statutory legal document that lets you (the “principal”) appoint someone you trust (the “agent”) to make financial and legal decisions on your behalf.

A Durable Power of Attorney remains in effect if you become mentally incapacitated, ensuring your affairs are managed according to your wishes even if you can’t make decisions yourself.

• A Durable Power of Attorney (POA) is one of Maryland’s most common alternatives to guardianship;
• The key feature of a Durable Power of Attorney is that it remains in effect even if the principal (you) becomes incapacitated;
• The durability of the legal document ensures the agent, your appointed power of attorney, can continue acting on your behalf even if you can no longer make decisions.

Download the Maryland Durable Power of Attorney Form 

Click this link to complete and download the Maryland Statutory Durable Power of Attorney form.

What Kind of Decisions Can An Appointed Agent Make Under a Maryland Durable Power of Attorney?

Financial Matters:

• Banking: An agent can make decisions about your bank accounts, including depositing and withdrawing funds, opening and closing accounts, and applying for loans;
• Real Estate: Your agent can buy, sell, or even manage real estate properties on your behalf;
• Investments: An agent can manage your investments, including buying and selling stocks, bonds, and other securities;
• Taxes: Agents can file and pay your taxes;
• Insurance: Agents can purchase and manage insurance policies;
• Bill Payment: Agents are authorized to pay your bills and manage your debts;
• Retirement Accounts: Your agent can manage your retirement accounts, including making contributions and withdrawals.

Legal Matters:

• Contracts: Your Durable Power of Attorney (your agent) can enter into contracts on your behalf;
• Legal Proceedings: Agents can represent you in legal proceedings if permitted by the court;
• Estate Planning: Agents can, of course, manage your estate planning documents, such as your will or trust.

Other Matters For Which Your Assigned Agent Can Make Decisions:

• Business Affairs: An agent can manage your business interests if you own a business;
• Government Benefits: Agents can apply for and manage government benefits on your behalf;
• Gifting: They can make gifts on your behalf, subject to any limitations you specify in your Power of Attorney document;
• Digital Assets: If authorized in your POA, your agent can access and manage your digital assets, such as online accounts and social media profiles.

Important Note: The specific powers granted to the agent depend on the Durable Power of Attorney document’s language. You can tailor the document to grant broad or limited powers to your agent based on your needs and preferences.

Why is a Durable Power of Attorney Less Extreme than Guardianship? 

• A Durable Power of Attorney is a proactive measure that you, the principal, can set up while still mentally competent, giving you complete control over who (the agent) will act on your behalf;
• Unlike guardianship, which involves a court removing certain rights from an individual, a Durable POA is voluntary and flexible;
• The named principal (you) in the document retains the power to revoke or modify their power of attorney (the assigned agent) if circumstances change, making it a less intrusive and more personalized solution;
• The named power of attorney does not make decisions on behalf of the principal (you) – unless notated explicitly in the legal document;
• The principal (you) must trust their assigned agent completely; a power of attorney (the agent) has significant control over the principal’s finances and legal matters.

Do I Need to Hire An Attorney to Draft a Maryland Durable Power of Attorney? 

No, you do not technically need an attorney to draft a Durable Power of Attorney document.

However, The Senior Soup strongly recommends consulting with a Maryland attorney specializing in elder law and/or estate planning for these reasons:

• A qualified attorney can help ensure your Durable Power of Attorney is executed correctly and complies with Maryland law;
• A “one-size-fits-all” Durable Power of Attorney may not adequately address your unique circumstances; however, an attorney can help you customize the document to grant your agent the appropriate authority level;
• Moreover, an attorney can help you anticipate and address potential issues, such as disagreements among family members or questions about the agent’s authority in specific situations.

There are specific requirements for signatures, witnesses, and notarization:

• Signature: A Maryland Durable Power of Attorney must be signed by the principal (the person granting the power) or by another person in the principal’s presence and at their direction;
• Notarization: The principal (you) must acknowledge their signature before a licensed notary public;
• Witnesses: At least two adult witnesses must sign the Power of Attorney. These witnesses must either be in the physical presence of the principal and each other when they sign OR be in the electronic presence of the principal and each other when they sign (as of October 1, 2022).

While you can technically draft a Durable Power of Attorney yourself, the peace of mind and legal protection of having an attorney’s guidance is often well worth the investment.

Proper estate planning helps families avoid seeking guardianship!

What Do I Need To Know About The Maryland Statutory Durable Power of Attorney Form?

The Maryland Statutory Durable Power of Attorney form allows you to plan for future incapacity by giving someone you trust the legal authority to manage your finances.

• It’s Statutory Form: The Power of Attorney document is a standardized legal form created by the Maryland legislature, ensuring it complies with state law;
• It’s Durable: The power remains in effect even if you become incapacitated, providing continuity in managing your finances;
• Financial Powers: Your assigned agent can handle a wide range of financial matters, including banking, investments, real estate transactions, paying bills, filing taxes, applying for benefits, and more;
• Specific Powers: You can choose which particular powers to grant your agent, allowing for customization based on your needs and preferences;
• Effective Date: You can decide if the power is effective immediately after execution or only upon your incapacity (“springing” power).
• Revocation: You can revoke your assigned agent’s power at any time as long as you are mentally competent.
• Successor Agent: You can name a successor agent to act on your behalf if your first agent choice is unable or unwilling to serve.

Where Can I Read the Maryland Law on Durable Power of Attorney?

The Benefits of a Maryland Durable Power of Attorney 

• The principal (you) retains control by choosing who will manage their affairs;
• It avoids the need for court intervention;
• You can tailor your Durable Power of Attorney to your specific needs.

How Does a Maryland Durable Power of Attorney Work for You? 

• The principal (you) must be mentally competent at the time of signing the POA;
• If you lacked capacity at the time you signed your Durable Power of Attorney, a court could invalidate it ;
• The POA can be effective immediately OR only upon the principal’s incapacitation (known as a “springing” POA);
• The agent can handle tasks such as paying bills, managing property, and handling other financial matters;
• The specific powers will depend on the language of the document itself.

What are the Differences Between an Immediate & Springing Durable Power of Attorney?

1. Immediate Power of Attorney: Your agent’s authority begins when you sign your POA document. This immediate authorization means they can act on your behalf anytime, even if you can still make your own decisions.;
2. Springing Power of Attorney: Alternatively, you can draft your POA document to become effective only if a physician or another qualified healthcare provider determines you lack capacity. This type of arrangement is known as a “springing” POA. In this case, your designated agent can only act on your behalf once a specified event occurs – again, such as a physician declaring you incapacitated.

Does a Maryland Durable Power of Attorney Apply Outside of Maryland? 

Yes, a Maryland Durable Power of Attorney generally applies outside of Maryland.

Suppose you live in Maryland but are visiting family or friends in an adjacent U.S. state, and you become incapacitated as a result of an accident and are unable to make decisions.

Your listed agent (the person you named as your power of attorney) should be able to act on your behalf.

Here’s why:

• The Uniform Power of Attorney Act: Maryland has adopted the Uniform Power of Attorney Act, which promotes the acceptance of powers of attorney executed in one state by other states.
• What Maryland Law Says: Maryland law states that even if the principal or agent resides outside of Maryland or a power of attorney was executed outside of Maryland, a power of attorney executed in Maryland remains valid and enforceable for those interacting with the agent.

Guardianship Alternative: Create a Maryland Advance Healthcare Directive (Living Will)

A Maryland Advance Healthcare Directive, often called a Living Will, allows Marylanders to outline their preferences for medical care if they become incapacitated.

Here’s what you need to know:

• Marylanders can appoint a healthcare agent to make decisions on their behalf;
• Remember, a Maryland Advance Directive only becomes effective if the declarant (the person who created the directive – you) is determined to be incapacitated;
• Incapacity, in this context, generally means that the individual (you) can no longer understand their (you) medical condition, make informed decisions about their treatment, or communicate their wishes effectively.
• In Maryland, a physician determines incapacity, often in consultation with one other physician, a nurse practitioner, a licensed psychologist, or a licensed clinical social worker.
• If the declarant (you) is mentally competent and able to communicate their (your) healthcare preferences, then the Advance Directive is not applicable.

• You retain the right to make your own medical decisions, even if those decisions differ from what you stated in your Advance Directive.

A Maryland Advance Healthcare Directive essentially serves as a backup plan, ensuring that your wishes regarding medical treatment are respected if (you) cannot express yourself.

The directive empowers your chosen healthcare agent(s) to make decisions on your behalf, guided by the instructions and preferences outlined in your directive.

What Kind of Decisions Can An Appointed Healthcare Agent Make Under Maryland Advance Directive?

An appointed healthcare agent (also known as a healthcare proxy) has the authority to make a wide range of healthcare decisions on behalf of the declarant (the person who created the directive) when the declarant is unable to make these decisions themselves, including:

Authorize Medical Treatment Decisions:

• Consent to or refuse medical treatments: In Maryland, a healthcare agent generally has the authority to consent to or refuse medical treatments on behalf of the declarant, including decisions about surgeries, medications, and other medical procedures;
• Approval or disapproval of diagnostic tests: A healthcare proxy can decide whether the declarant should undergo specific tests or screenings;
• Decisions about pain management: The assigned healthcare agent has the authority to approve or refuse pain-relief treatments and medications based on the declarant’s known wishes or best interests;
• Acceptance or refusal of blood transfusions: The healthcare agent can decide whether the declarant should receive blood or blood products.
• Approval of organ and tissue donation: While the agent can generally make decisions about organ and tissue donation if not specified in the directive, it’s important to be aware that Maryland has specific laws and procedures regarding organ donation. It’s best to consult relevant state laws or healthcare professionals to ensure proper compliance.

Make Life-Sustaining Treatment Decisions:

• Decisions regarding life-sustaining treatment: These include whether to begin, continue, or discontinue treatments (e.g., mechanical ventilation, dialysis, or feeding tubes);
• End-of-life care decisions: The healthcare proxy can decide on palliative and hospice care for the declarant;
• Do Not Resuscitate (DNR) orders: A healthcare agent can generally consent to or refuse a DNR order on behalf of the declarant, instructing healthcare providers not to perform CPR if the declarant’s heart stops. However, healthcare providers might need to follow specific procedures when implementing a DNR order, and it’s best to consult with healthcare providers or legal professionals to ensure compliance with Maryland’s specific regulations.

Make Decisions about Living Arrangements and Personal Care:

• Choosing healthcare facilities: An assigned healthcare agent can decide on the declarant’s admissions to various healthcare facilities like hospitals, skilled nursing facilities, assisted living communities, or other healthcare institutions;
• Decisions about home healthcare: The agent can typically arrange for home health services, including selecting a home-based primary care practice, a private-duty home care agency, and home health services;
• Consent to or refusal of mental health treatment: A healthcare proxy can typically approve or refuse psychiatric treatment or mental health services on behalf of the declarant.

Make Decisions Regarding Autopsy and Burial/Cremation:

• Consent to or refusal of an autopsy: A healthcare agent can decide whether an autopsy should be performed after the declarant’s death, considering any preferences stated in the directive or the declarant’s known wishes;
• Decisions about burial or cremation: The agent can choose the method of your body’s final disposition, including selecting a funeral home, funeral services, burial, or cremation, keeping in mind any documented preferences in the directive.

Access a Declarant’s Medical Records:

• Authorization to access medical records: The healthcare agent can access the declarant’s medical records to make informed decisions about their care;
• Communication with healthcare providers: The agent can speak with doctors, nurses, and other healthcare professionals to understand the declarant’s medical condition and treatment options.

Make General Healthcare Decisions:

• General consent to or refusal of treatments: An agent has broad authority to make any healthcare decision the declarant would make if they were capable, as long as these decisions align with the declarant’s expressed wishes in the directive or their known values and beliefs if it’s not explicitly stated;
• Decision-making in unforeseen circumstances: The healthcare proxy is empowered to make decisions even in situations not explicitly addressed in the declarant’s Advanced Directive. The guiding principle is to act in accordance with the declarant’s known wishes or, if these are unclear, in their best interests.

Religious and Cultural Considerations:

Making decisions consistent with the declarant’s religious beliefs: The agent can ensure that healthcare decisions align with the declarant’s religious or cultural values, especially in end-of-life care.

Decide on Research and Experimental Treatments:

• Consent to participation in clinical trials: In Maryland, an assigned healthcare proxy can decide whether the declarant should participate in medical research or experimental treatments;
• Decisions about investigational drugs or treatments: The agent may have some authority to consent to non-FDA-approved medications or treatments, especially in situations where standard treatments have failed and the investigational treatment offers potential benefit. However, this decision might involve additional considerations, such as the risks and potential benefits of the treatment, and it is advisable to consult with healthcare professionals and potentially legal experts to ensure compliance with any relevant regulations or protocols.

Authorize Organ and Tissue Donation

Consent to organ and tissue donation: The healthcare agent can make this decision if the declarant has not explicitly expressed their wishes regarding organ donation in their Advance Directive or through another legally recognized means (such as joining the state’s organ donor registry).

However, the agent should make this decision in alignment with the declarant’s wishes or best interests.

It’s important to note that Maryland law prioritizes the following individuals (in the order listed below) to make decisions about organ donation if the declarant has not made a prior decision:

1. Spouse;
2. Adult child;
3. Parent;
4. Adult sibling;
5. Any other adult relative who exhibited special care and concern for the individual;
6. An individual acts as the individual’s guardian at the time of death.

The healthcare agent will only have authority if no individuals listed above are available or willing to decide.

Why is an Advance Healthcare Directive Less Extreme than Guardianship?

• An Advance Healthcare Directive ensures that healthcare providers respect your choices without court intervention.;
• If you become incapacitated, healthcare providers are legally obligated to follow your directive, potentially avoiding court intervention to make decisions on your behalf.
• By completing an Advance Healthcare Directive now, you specifically address your healthcare decisions when you can make critical and intelligent decisions.

Do I Need to Hire An Attorney to Draft a Maryland Advance Directive? 

No, you do not technically need to hire an attorney to draft a Maryland Advance Healthcare Directive.

Maryland law allows individuals to create their own Advance Directives using forms provided by the Maryland Attorney General’s Office.

However, consulting with an attorney can be beneficial, especially if:

• You have complex medical wishes or concerns about potential family conflicts;
• You want to ensure your Advance Directive accurately reflects your preferences and is legally sound;
• You have questions about specific medical treatments or end-of-life care options;

If you understand the legal requirements and can clearly express your wishes, you can create your Advance Directive without an attorney.

How Do I Properly Execute a Maryland Healthcare Advance Directive? 

Step 1: Obtain the Form:

You can download the official Maryland Advance Directive form from the Maryland Attorney General’s website or obtain a copy from your healthcare provider, attorney, or local senior center.

Step 2: Complete the Form:

• Part A – Appointment of Healthcare Agent:

  • Designate your healthcare agent: This is the person (also known as a healthcare proxy) you trust to make medical decisions on your behalf if you become incapacitated;
  • Provide the agent’s full name, address, and contact information;
  • Name an alternate agent in case your primary agent is unable or unwilling to serve.

• Part B – Your Healthcare Instructions:

  • This section allows you to provide specific instructions about your healthcare preferences, such as:
    • Life-sustaining treatments you do or do not want;
    • Pain management preferences;
    • Organ and tissue donation wishes;
    • Any other specific instructions.

• Part C – Signature and Witnessing:

  • Sign the form in the presence of two adult witnesses;
  • Your witnesses must also sign the form and provide their addresses;
  • Important: Neither your healthcare agent nor providers can serve as witnesses.

Step 3: Distribute Copies:

• Give a copy of your completed Advance Healthcare Directive to your healthcare agent, primary care physician, and any other healthcare providers you regularly see;
• Keep a copy for yourself and let your family members or close friends know where you keep it;
• Consider uploading a copy to the Maryland Advance Directive Registry, a secure online database allowing healthcare providers to access your Advance Directive in emergencies.

Remember: Completing and executing your Maryland Advance Directive properly is crucial to ensure your healthcare wishes are honored if you cannot communicate them yourself.

How Do I Ensure That My Maryland Healthcare Advance Directive is Legally Valid?

• The Maryland Advance Healthcare Directive Must Be Written Document: Your Advance Directive must be in writing, either typed or handwritten. While oral directives are possible in specific circumstances, they have more stringent requirements and are generally less reliable.
• Sign and Date the Document: You must sign and date your Advance Directive. If you cannot sign the document, another person may sign on your behalf if you direct them to and are in your physical presence. 
• Witness Criteria:
  • Your two witnesses must be competent adults;
  • The witnesses you choose to sign your Advance Directive cannot be directly involved in any aspect of your medical care;
  • Either witness cannot be your appointed healthcare agent listed in your Advance Directive;
  • Your two witnesses cannot be related to you by blood, marriage, or adoption, and they cannot be entitled to any portion of your estate upon your death.

Additional Considerations:

• You Don’t Need to Notarize Your Advance Directive – But You Should Consider Doing So: While not strictly required by Maryland law, having your Advance Directive notarized can provide additional evidence of its authenticity and intent;
• You Must Be Mentally Competent When You Signed Your Advance Directive: The declarant (you) must be mentally competent when you sign your Advance Directive, meaning that you understand the nature and consequences of your decisions;
• You Must Approach The Process Voluntarily: When creating your Healthcare Advance Directive, the declarant (you) must act freely and without coercion or undue influence.

Where Can I Read The Law on Maryland Advance Healthcare Directives?

The relevant statute, Maryland Health-General Article § 5-602, outlines the process for creating a Maryland Advance Directive, including the appointment of a healthcare agent and specific instructions for future healthcare decisions.

Does a Maryland Advance Healthcare Directive Apply Outside of Maryland? 

Yes, a Maryland Advance Healthcare Directive generally applies outside of Maryland.

If you have a Maryland Advance Directive and become incapacitated in another state, healthcare providers should still honor your wishes as outlined in the document.

Key points to remember:

• Portability: U.S. states will generally recognize an Advanced Healthcare Directive created in other states;
• State Laws Vary: While most states recognize out-of-state advance directives, there might be subtle differences in specific provisions or requirements. It’s always advisable to familiarize yourself with the laws of any state you plan to spend significant time in;
• Communication is Key: Inform your healthcare agent and loved ones about your Advance Directive and ensure they have access to a copy, especially if you are traveling or residing outside Maryland.

While your Maryland Advance Directive should be honored in most situations outside of Maryland, it’s always a good practice to consult with a trusted attorney if you have concerns about its applicability in a specific state.

An attorney can advise you on any potential issues or necessary modifications to ensure your wishes are respected wherever you may be.

Guardianship Alternative: A Revocable Living Trust

A Revocable Living Trust is a flexible estate planning tool that allows an individual (the “grantor”) to transfer ownership of their assets into a trust while retaining control over them during their lifetime.

The grantor (you) can act as the trustee, managing the trust’s assets until they (you) become incapacitated; at this point, a successor trustee steps in to manage the trust according to the grantor’s (you) instructions.

Here’s what you need to know:

• The Trust is Revocable: As the grantor, you can modify, amend, or revoke your trust at any time while you are mentally competent, providing a high level of flexibility and control;
• Continuity in Management: Upon incapacity, the successor trustee automatically takes over without needing court involvement, ensuring seamless management of your trust’s assets.
• Avoids Probate: Upon the grantor’s (you) death, the assets in the trust pass directly to the named beneficiaries, bypassing the probate process, which can save time and reduce legal fees.

Why is a Revocable Living Trust Less Extreme than Guardianship?

A Revocable Living Trust allows you to proactively manage your assets during your lifetime and ensure your continued management should you become incapacitated.

The terms of the trust can be tailored to your specific needs and wishes, providing a personalized solution that can adapt to changing circumstances without the rigidity of court-appointed guardianship.

A Revocable Living Trust Can Also:

• Preserve Your Autonomy Over Your Assets: Unlike guardianship, which involves a Circuit Court removing certain rights from an individual, a Revocable Living Trust allows you to retain control over your assets while you are competent. If you become incapacitated, the trust only shifts control to a successor trustee, making it a more respectful and less invasive alternative;
• Help Avoid Court Supervision: A trust operates privately without ongoing court supervision. This privacy and efficiency make it a more practical option for many Marylanders and families;

Do I Need to Hire an Attorney to Create a Revocable Living Trust?

While you can technically create a Revocable Living Trust without an attorney, The Senior Soup recommends consulting with an experienced Maryland estate planning attorney for the following reasons:

• To Ensure A Trust is Properly Executed & Complies with Maryland Law: Specific legal requirements must be met, including properly drafting the trust document, transferring assets into the trust, and ensuring that the trust is revocable and amendable according to your wishes;
• The Trust Reflects Your Specific Needs: An attorney can tailor the trust to your unique circumstances, such as providing for specific beneficiaries, establishing conditions for distributions, and ensuring that the trust aligns with your broader estate planning goals;
• Potential Issues Addressed Upfront: An attorney can help anticipate and address potential legal issues, such as conflicts among beneficiaries, tax considerations, and the choice of a successor trustee.

Download the Maryland Revocable Living Trust Form

To create a Revocable Living Trust without a Maryland attorney, you can download a legal template by clicking the following link: Maryland Revocable Living Trust Form.

To reiterate: The Senior Soup strongly encourages you to contact a Maryland estate planning attorney for personalized advice and to ensure your trust is legally sound.

Click this link to download a PDF booklet on revocable living trusts in Maryland, including their advantages, disadvantages, and common misconceptions.

This booklet was developed jointly by the Estates & Trusts Law Section of the Maryland State Bar Association and the Maryland Offices of the Registers of Wills.

This booklet is provided for informational purposes only and does not constitute legal advice.

The Benefits of Setting Up a Revocable Living Trust

• A Revocable Trust Maintains Your Control: The grantor (you) retains complete control over the trust and its assets while competent. You can manage, invest, and even withdraw assets from the trust as you see fit;
• You Can Avoid Probate: Assets held in a Revocable Living Trust avoid probate upon death, meaning beneficiaries can receive their inheritance more quickly and with less hassle. The trust distributes the assets more quickly and according to the grantor’s instructions, eliminating the need for court oversight;
• Flexible Management: The grantor (you) can modify or revoke the trust at any time, offering adaptability as circumstances change;
• Seamless Succession: If the grantor (you) becomes incapacitated, a successor trustee, whom the grantor designates, can manage the trust without court intervention or guardianship, ensuring continuity while avoiding potential delays or disputes.

How Does a Revocable Living Trust Work?

• You Create the Trust: The process of establishing a Revocable Living Trust begins with the grantor creating the trust document (typically with the assistance of an estate attorney). The document outlines the terms of the trust, including the designation of the beneficiaries and the successor trustee;
• Your Manage Your Trust: The grantor (you) manages the trust assets as the trustee while they (you) are competent;
• You Can Name a Successor Trustee: A crucial element of a Revocable Living Trust is the designation of a successor trustee. This individual or entity will take over the management of the trust assets if you become incapacitated or upon your death, ensuring a smooth transition and continuation of your wishes;
• Your Trust Distributes Your Assets Upon Death: Upon your death, the trust distributes assets to your designated beneficiaries according to the terms of the trust, bypassing probate and saving your beneficiaries time and potential legal expenses.

Does a Revocable Living Trust Apply to All My Assets?

• A Revocable Living Trust applies only to the assets transferred into it. Any assets not titled in the trust’s name remain outside its scope and are not subject to its provisions;
• To avoid probate and ensure a smooth transfer of assets to your beneficiaries, it’s crucial to properly retitle all assets you intend to include in the trust into the trust’s name;
• Any assets not included in the trust may be subject to probate or other legal processes outside the trust’s control.

Where Can I Read the Law on Maryland Recovable Living Trusts?

Maryland law has no specific statute that exclusively governs Revocable Living Trusts in a single section.

Instead, the legal framework for trusts, including Revocable Living Trusts, is primarily found in the Maryland Trust Act, codified in Title 14.5 of the Maryland Code, Estates and Trusts Article.

This section of the Maryland Code outlines the general rules and requirements for creating, managing, and enforcing trusts in Maryland, including provisions that would apply to Revocable Living Trusts.

Key Sections of the Law Include:

• § 14.5-401: Creating a Trust;
• § 14.5-402: Intent and Capacity of Settlor to Create a Trust;
• § 14.5-403: Trusts not created by Wills;
• § 14.5-601: Capacity Required to create or amend revocable trust or direct actions of the trustee.

These sections and others in Title 14.5 provide the legal basis for establishing and managing Revocable Living Trusts in Maryland.

Does a Revocable Living Trust Created in Maryland Apply Outside of the State?

Yes, a Maryland Revocable Living Trust generally applies outside of Maryland.

Here’s why:

• Full Faith and Credit Clause: The U.S. Constitution’s Full Faith and Credit Clause (Article IV, Section 1) requires states to respect the “public acts, records, and judicial proceedings” of other states. A properly executed Maryland Revocable Living Trust should be recognized and enforceable in different states.
• Uniform Trust Code (UTC): Maryland has adopted the Uniform Trust Code (UTC) in its Maryland Trust Act, codified in Title 14.5 of the Maryland Estates and Trusts Article. Many other states have also adopted versions of the UTC, which promotes consistency in trust laws across states. This consistency helps ensure that other states adopting similar provisions recognize a trust created in Maryland.
• Trust Administration: If you move to another state or the trust property is located in another state, the new state should generally honor the terms of your Maryland trust. However, if the trust holds real estate or other property in another state, local laws of that state may apply to the management or disposition of that property.
• Trustee Responsibilities: A successor trustee residing in another state should still be able to administer the trust according to its terms as long as it complies with Maryland law. You’ll want to ensure the trustee is aware of and able to comply with any specific legal requirements in the state where they reside.

Exceptions and Local Variations

While a Maryland Revocable Living Trust is generally valid across state lines, some states may have specific legal nuances or procedural requirements that could affect how the trust is administered, particularly concerning real property or tax considerations.

For instance, some states might require additional steps to transfer real estate into the trust.

Recommendations

• Consult Local Counsel: If you move to another state or if significant trust assets are located outside of Maryland, consult an attorney in that state. An attorney can ensure your trust fully complies with local laws and advise you on any necessary adjustments.
• Review and Amend: Periodically review your Revocable Living Trust, especially after moving to another state, to ensure that it remains effective and aligns with your current circumstances and state laws.

Final Thoughts About Alternatives to Maryland Guardianship

Through proper estate planning, Marylanders can significantly reduce the need to seek guardianship over a loved one.

To recap:

• A Durable Power of Attorney for finances enables individuals to appoint someone to manage their financial affairs if they cannot do so, helping to avoid the need for a court-appointed conservator or guardian of the property;

• An Advance Healthcare Directive, such as a Healthcare Power of Attorney or Living Will, allows Marylanders to designate a trusted person to make healthcare decisions if incapacitated, eliminating the need for court intervention and guardianship proceedings.

• A Revocable Living Trust allows for seamless asset transfer and property management without court involvement, even if the grantor becomes incapacitated or dies. Thus, it reduces the likelihood of needing guardianship for asset management.

Proactive estate planning can significantly reduce the need for costly and complex guardianship proceedings.

Ryan Miner, MBA | Co-Founder and Podcast Host | The Senior Soup

Ryan Miner

Podcast Host | Healthcare Marketer at The Senior Soup | Ennoble Care | (301) 991-4220 | ryan@theseniorsoup.com | Website | + posts

Hi, I'm Ryan!

I co-founded The Senior Soup Soup with Raquel Micit in September 2022. Together, we host The Senior Soup Podcast.

I am a community relations manager for Ennoble Care in Maryland, where I am responsible for marketing our home-based primary care healthcare practice.

I have over 15 years experience in healthcare, senior services, senior care, marketing, public policy, and search engine optimization.

I have a MBA from Mount St. Mary's University and a BA from Duquesne University.

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