New state guardianship rules seek to protect minors
Adverse immigration action now a reason to designate ‘standby’
New rules governing the appointment of guardians by Maryland’s courts include a provision that allows parents facing detention or deportation on federal immigration charges to designate a guardian for their children.
The courts adopted the rules following the passage of an emergency law last year that added “adverse immigration action” to the list of reasons why a parent could designate a socalled standby guardian in their absence.
The package of rules adopted by the courts related to standby guardianships permit the appointment of an investigator to examine a petition for guardianship of a minor or their property and require hearings for all petitions for a court-appointed standby guardian. They also require standby guardians to comply with annual reporting requirements that apply to other types of court-appointed guardians.
The new rules for standby guardianships went into effect Jan. 1.
Attorney Nisa C. Subasinghe, who manages the domestic and guardianship program for the state’s Administrative Office of the Courts, said the court adopted the rules actively, not in response to any specific cases or incidents.
“It’s about making sure the process is the same across the state,” Subasinghe said.
According to a 2016 study by the Migration Policy Institute, a nonpartisan policy organization in Washington, between 2009 and 2013 there were approximately 90,000 children younger than 18 living in Maryland whose parents were unauthorized immigrants, representing 28 percent of children of all immigrants in the state during those years.
The emergency legislation was introduced in last year’s General Assembly by Sen. William C. Smith Jr. (D-Montgomery County) and Del. Carlo Sanchez (D-Prince George’s) and approved by Gov. Larry Hogan (R) following the end of the session.
Bethesda-based attorney Cam Crockett, who testified before the state legislature and the court’s rules committee on behalf of extending standby guardianship to children of parents facing adverse immigration action, said the new rules are “extremely beneficial to the immigrant community” as well as to guardianship liaison staff in courts across the state.
“The new rules address the important question of whether the standby guardian is serving in the best interest of the child,” Crockett said in an email.
Crockett explained that the rules require standby guardians to provide a statement from the child’s primary health care provider, recent school reports, and any court records pertaining to the child.
“These [records] allow the court to be better informed as to the best interest of the child at an early level in the proceedings,” Crockett said.
In addition to the rules for standby guardianship, on Jan. 1 the court also adopted new rules to speed up the process of hearing petitions for guardians of disabled people needing non-emergency medical treatment.
“The reason why these rules were put into place is because the way the court determines how quickly to have a hear- ing ... varies across the state,” Subasinghe said. “These rules … create some consistency in terms of the decision-making structure for how courts hear these cases and how quickly.”
The streamlined process will help shorten hospital stays for disabled people, reducing their social isolation and risk of infection, while also ensuring their rights are protected.
“It’s the same process, we’re just trying to get consistency in terms of how and when courts hear these cases,” Subasinghe said.
These new rules are designed to prepare the courts for an expected upswing in guardianship applications as the state’s elderly population continues to grow. According to the U.S. Census Bureau, by 2030 a fifth of the nation’s population will be retirement age, outnumbering children younger than 18 for the first time.
In November, the U.S. Senate Special Committee on Aging released a report calling for improvements in the way courts oversee their guardianship programs and called for additional investment by state and federal agencies in guardianship programs and alternatives to help meet the anticipated increase in demand.
“These are very important cases for us, and with the 65-and-plus population increasing, we’re trying to get ahead of that and make sure we’re prepared for that influx of cases,” Subasinghe said.
A third set of rules that also went into effect, which changed some of the procedural requirements for guardianship hearings, will make it easier for people who can’t afford to hire an attorney when seeking a court-appointed guardian.
“Guardianship cases are very complex, and they should be because at the end of the day someone is losing their rights,” Subasinghe said.
“Attorneys … are aware of court processes and how to make requests and things like that, and to some extent a lay person is at a disadvantage. As in any [legal] situation, you have an advantage if you do have a lawyer. We don’t want to prevent people from seeking guardianship because they can’t afford it.”
Information about guardianship programs for minors and disabled adults is available on the Maryland Courts website at www.courts.state.md.us.