65 A.3d 203
Md. Ct. Spec. App.2013Background
- Merilee Rosenberg underwent deep brain stimulation in 2008 and could not manage her finances afterward due to surgery side effects and Parkinson's.
- A circuit court appointed a guardian of her property (Mr. McCarthy) and counsel for Rosenberg after hospital petitioned for guardianship.
- Two years later Rosenberg moved to terminate the guardianship; the court held a hearing and denied termination.
- Independent medical evaluation (Dr. Nay) and a treating physician (Dr. Hyde) offered conflicting views on Rosenberg’s capacity to manage finances and independence.
- The circuit court denied termination, stating it applied statute § 13-221 and “best interest” considerations, and indicating it was not required to apply clear and convincing standard.
- This Court vacates the order, remanding for further proceedings, and notes the possibility of considering less restrictive alternatives.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What evidentiary standard applies to terminating a guardianship of property? | Rosenberg argues clear and convincing standard should apply (Lee). | McCarthy argues termination is governed by a preponderance standard. | Termination standard is preponderance; burden shifting may apply. |
| Whether court must consider less restrictive alternatives to a guardianship of property. | Rosenberg urges the court to consider less restrictive options. | McCarthy contends no statutory requirement, only termination triggers apply. | Court may consider less restrictive options; not required but permissible on remand. |
| Was there substantial evidence to support continuing the guardianship and did the court mishandle burden of proof? | Rosenberg asserts evidence shows cessation of disability. | McCarthy challenges sufficiency of evidence to end guardianship. | Order vacated; remand for proper Rule 10-710 procedure and burden-shifting analysis. |
Key Cases Cited
- In re Lee, 132 Md.App. 696 (Md. 2000) (discusses strict burden of proof for guardianship of the person)
- Wink v. State, 317 Md. 330 (Md. 1989) (civil standard of persuasiveness; preponderance applied to 'satisfaction of the court')
- Henriquez v. Henriquez, 413 Md. 287 (Md. 2010) (statutory interpretation and reading plain language with no assumed intent)
- In re Hedin, 528 N.W.2d 567 (Iowa 1995) (burden-shifting in guardianship termination contexts)