Beginning in summer 2024, the Maryland Health Care Ethics Committee Network (“MHECN”) undertook the task of convening stakeholders to develop alternatives to guardianship for unrepresented hospital patients (PDF)—both for treatment decisions and for discharge planning. The goal was to build consensus, draft legislation, and work with legislators to introduce and advance bills in the Maryland General Assembly. This effort was prompted by concerns raised by member ethics committees about the lengthy court process required to appoint a guardian and the resulting periods during which unrepresented patients received substandard care or were exposed to preventable harm. Hospitals also reported significant challenges discharging unrepresented patients who could not leave without a court-appointed guardian. Around the same time, Delegate Sandy Bartlett—then Vice Chair and now Chair of the House Judiciary Committee—sent a letter asking Diane Hoffmann, Professor of Law and Director of MHECN, to lead this initiative.
The stakeholder working group, which grew to more than 30 members, included representatives from hospitals, long-term care providers, disability and aging advocacy organizations, ethics committees, attorneys who serve as guardians, and staff from the state departments of aging, disability, and social services. Their work resulted in the drafting and introduction of two bills last session (2026): HB 1323 (treatment decisions), sponsored by Del. Sandy Rosenberg, and HB 1062 (discharge decisions), sponsored by Dels. Elizabeth Embry and Taveras. In the 2026 session, HB 1062 passed almost unanimously, while HB 1323 did not advance out of the Health Committee. The article below describes the need for this legislation, the content of the bills, and the next steps for moving this work forward.
For unrepresented hospital patients who lack decision-making capacity, guardianship has historically been the primary mechanism for making necessary medical and financial decisions in Maryland, as outlined in the People’s Law Library guide to guardianship. For the purposes of the Working Group’s efforts, we defined an unrepresented patient (PDF) as someone who has been legally deemed as lacking decision-making capacity and is without a legally authorized surrogate. Maryland has faced a persistent challenge in determining the appropriate course of care for these patients when they require treatment or are ready for discharge. This problem has grown severe enough that MHECN created a Working Group on Alternatives to Guardianship for Unrepresented Hospital Patients (“Working Group”) to address the problem. Research done by the Working Group (PDF) found that “one hospital ‘waited 225 days for a guardian to be appointed,’ and others routinely face ‘delays of 50 to 70 days’ before a hearing [was] held.”
The Working Group drafted two bill proposals dealing with the issue. During the 2026 legislative session, the bills were introduced and considered. HB 1062, which focused on barriers to discharge, passed. HB 1323, which would have created a new process for making treatment decisions, did not advance. However, the bill is being revised, and Del. Rosenberg plans to introduce it in the 2027 legislative session.
HB 1062 (enacted as Ch. 433, Laws of Md. 2026 and codified at Estates & Trusts § 13-204) took effect October 1, 2026. The bill authorizes court-appointed individuals to perform additional “specific transactions” without being judicially appointed as a guardian, including: (1) Accessing financial or other records necessary to complete benefits applications or verify coverage; and (2) Establishing eligibility for benefits, such as Medical Assistance (Medicaid), to support timely discharge to appropriate post‑acute settings, as described in testimony on HB 1062 (PDF). The purpose is to provide a targeted and less-restrictive alternative to guardianship for unrepresented hospital patients who need timely discharge decisions.
Delays caused by the guardianship process can leave patients in acute care beds for weeks or months, increasing risk of harm for the patient and overutilizing hospital space, so, once a patient has received the needed treatment, it benefits both the patient and hospital to efficiently discharge the patient. Hospitals do not have unlimited capacity and rely on efficient discharge in order to prevent crowding. Also, patients could end up receiving the wrong level of care if they need to be discharged to a skilled nursing facility, or a facility that offers different care. The favorable testimony from the Maryland Chapter of the AARP (PDF) and testimony from the Maryland Department of Aging (PDF) both note that the guardianship process can take a very long time and this bill would allow for unrepresented patients to be moved quickly to more suitable locations.
Admission to a nursing home requires both consent by a surrogate or guardian and financial arrangements for payment. Long-term care (“LTC”) facilities require proof that the cost of care will be covered, whether through insurance or private assets. Medicaid is the primary payer for most unrepresented patients. To qualify, patients must meet income and asset eligibility requirements. If the patient is not Medicaid-eligible and lacks insurance coverage, facilities require proof of ability to pay privately. Nursing homes often request financial disclosure (bank statements, proof of income, assets) before admission and may require a responsible party to sign a financial agreement covering costs until Medicaid approval. In practice, this means a family member, guardian, or representative must act as a financial guarantor, ensuring accountability if Medicaid or insurance does not cover the stay. If the patient has no surrogate with financial authority, a court-appointed guardian of the property may be needed to manage funds and apply for Medicaid.
For unrepresented patients, the rules for hospital discharge and admission to nursing homes before the passage of HB 1062 appeared to require, at a minimum, the appointment of a guardian of the person, and in many cases, both a guardian of the person and property. However, there are some alternatives in current law that can reduce the length of time for the actual discharge by expediting the receipt of financial documents necessary to apply for Medicaid and completing the Medicaid application. The first is a provision in Maryland regulations that allows an “authorized representative” to act on behalf of an applicant for, or recipient of, Medicaid, including helping the patient apply or establish eligibility for the benefit, as set out in Maryland’s Medicaid eligibility regulations. If the patient does not have capacity to designate an authorized representative, certain individuals or organizations can serve as an authorized representative if they declare under oath that they are acting in good faith, the patient lacks capacity, no other representative is available, and they have no conflicting financial interest. This could include a hospital employee. If the authorized representative needs access to financial or other records, they may need a court order, but appointment of an individual to carry out “specific transactions” for the patient is another option.
While the obstacles with the discharge of unrepresented and incapacitated patients were reduced by HB 1062, the issue regarding the treatment of unrepresented patients remains unaddressed. HB 1323 was referred to committee but did not move forward. Maryland hospitals routinely care for patients who are unrepresented. In situations where providers need consent for a medical treatment, they are required to seek a court-appointed guardian. The Working Group wrote in its report that this issue is of high concern as “delays in procedures such as tracheostomy or dialysis can worsen outcomes, increase infection risk, and prolong ICU stays, [and] these harms fall disproportionately on older adults, individuals experiencing homelessness, and people with serious mental illness.”
The following three cases illustrate the harms that can come to unrepresented patients when the hospital must petition for a guardian to make medical decisions for them. In the first case, Mr. J., a 72-year-old man experiencing homelessness, lacked capacity due to delirium and dementia and remained ventilator-dependent after severe pneumonia. A tracheostomy was recommended, but because it is a non-emergent procedure requiring consent, the hospital had to petition for a guardian. The hearing was not scheduled for five to six weeks, and during that delay he developed pressure sores and recurrent infections which could have been avoided. Second, Ms. T., a 79-year-old woman with advanced dementia, was admitted with chest pain and elevated troponins and needed a non-emergent cardiac catheterization. While she waited for a guardian, she suffered recurrent chest pain and a prolonged hospitalization, and once the guardian authorized the procedure, it revealed a treatable lesion. Lastly, consider Mr. L., a 63-year-old man with schizophrenia and a severe diabetic foot infection, who needed a debridement that was not emergent but was time-sensitive. His guardianship hearing was set 45 days out from the petition, and in the interim the infection progressed until he required a below-knee amputation that timely consent likely would have prevented.
HB 1323 was proposed as an amendment to the Health Care Decisions Act. The proposed amendment adds a surrogate decision-making committee to the bottom of the list of surrogates (Health-General § 5-605). The committee includes four hospital members (clinicians and ethics committee representatives), and three community members such as a patient advocate, former patient or caregiver, and disability or aging advocate. Like other surrogates, this committee would be authorized to make any decision to provide, withhold, or withdraw treatment of an unrepresented and incapacitated patient.
However, HB 1323 received pushback from Maryland Right to Life and members of the disability rights community on the breadth of this provision. They were concerned that the committee would have the authority to determine that an unrepresented patient should not receive, or should no longer receive, life sustaining medical treatment, thereby effectively making end-of-life care decisions for an individual whose wishes regarding the treatment, or lack of treatment, the committee does not actually know.
HB 1062 represents an important step toward reducing unnecessary reliance on guardianship for unrepresented hospital patients. MHECN is working with representatives of the disability community through Del. Rosenberg’s office, to attempt to address all relevant stakeholder concerns about the bill and include safeguards responsive to those concerns so that the legislation is amendable to all the relevant stakeholders and may be introduced with no or minimal opposition during the next legislative session.