Guardianship - What Every MoCo Family Needs to Know

Thanks to Jerry Weast and the Montgomery County Public Schools for alerting parents of minor children and other adults to get out their wills and reassess their promises to family members. If you are a parent or adult in Montgomery County and have included in your family plans a request for some one to serve as a guardian for your children, or may have agreed to serve as a guardian for someone else's children in the event of a personal catastrophe, this applies to you.

Many of us have a clause in our wills appointing a guardian for our children, or have agreed to serve as a guardian for a relative or close friend's family in the event that the parents are unable to be there for the children.

Get out your wills, review them carefully, because a new twist in the process may impact whether your child or your relatives child can obtain a free public education in Montgomery County if they are residing with a court appointed guardian.

Here is a definition of "Guardianship:"

A legal relationship created by a court between a guardian and his ward--either a minor child or an incapacitated adult. The guardian has a legal right and duty to care for the ward. This may involve making personal decisions on his or her behalf, managing property or both.

An individual applies for a guardianship of a minor child by completing various forms
and submitting them to the county's Registrar of Wills. The court then issues
the actual order appointing the guardian.

What does this mean? Here is a link to the brochure from the Maryland State Bar Association concerning the basics of guardianship and a description of what happens in the event a guardian is needed:

How is a Guardian Appointed?

In all instances, a petition must be filed with the Circuit Court in the county where the alleged disabled person resides, is hospitalized or is located. The petition should state all reasons for the appointment of a guardian and whether the request is for guardianship of the ward’s person, property or both. Quite often, guardianships of person and property are sought in the same petition.

The petition should also provide the petitioner’s name, address and telephone number, date of birth and relationship to the ward. It must also include the ward’s name, address, gender, age, the name and address of the person with whom the ward resides and an alternate address for service of process if the ward resides with the petitioner. If a guardianship over property is sought, the petition should include a description of the ward’s assets. Also accompanying the petition must be:

-for a disabled ward, verified certificates from two physicians, describing the physical or mental disability that makes appointment of a guardian necessary (one of the medical statements must be dated within 21 days of filing for guardianship);

-a list of the ward’s potential heirs if he or she died without a will, existing guardians or government agencies acting as guardians and all other persons exercising some control over the ward, including their names, addresses, telephone numbers and the nature of their interest;

-the name and address of the ward’s attorney if he or she has one.

What Happens After the Petition is Filed?

After the petition is filed, the Court will sign an Order requiring the ward, his or her attorney, and any other interested person or agency to respond to the guardianship request within 20 days. The ward and any interested person or agency must be notified of the guardianship proceedings and his or her rights at the proceedings. The court
will appoint an attorney to represent the ward and may appoint an independent
investigator to look over the facts of the case and report written findings to the court. The court will also schedule a hearing or jury trial, where a judge or jury decides whether guardianship is appropriate and who should be appointed as the guardian.

Usually, the judge decides the validity of the guardianship petition . . .

What parents and potential guardians who intend to bring children to Montgomery County, or keep their children within the county, when they are no longer able to do so need to know is that a small clause will be inserted by judges into guardianship orders that reads:

. . . provided that such appointment shall not be considered a waiver of any tuition that may be assessed by the Montgomery County Public Schools, and provided further that such appointment shall not be used to determine any requested transfer within the Montgomery County Public School system.

Dr. Weast has insisted that judges insert this language limiting the scope of the guardianship into all judicial orders. This can have a devastating impact whether your child can continue to receive a free public education while living with a court appointed guardian.

Recently, when attempting to enroll students in MCPS, several guardians have been denied the ability to enroll their wards in MCPS schools without paying tuition. The rationale provided? See the related blog post concerning Jeff S. where Dr. Weast finds that there is "insufficient documentation of a crisis" to warrant granting Jeff S. a tuition waiver to enroll in MCPS.

This is every parents worse nightmare. In the event that something happens to you, your successor must document to MCPS a compelling crisis that meets Dr. Weast's standards before your chosen guardian can execute his/her responsibility for your child's education and obtain a tuition waiver in MCPS. No, our Dr. Weast won't take the judge's appointment of a legal guardian as a compelling need, he wants to have the last say. Parents - check your documents, and consider naming a relative or person who lives outside of Montgomery County if you want to guarantee a free public education. If you are unable to assume your parenting responsibilities for your child - that's enough of a crisis without having to pass this Weast test.

Thanks Dr. Weast for the alert! Who would have thought that the Superintendent of Schools has jurisdiction to limit guardianship appointments and that a guardian can no longer decide where to enroll a child in school?

But wait - isn't the appointment of a guardian already an indicator that the child/ward's parents are already in a crisis?