Choosing An Adult Or Minor Guardianship Is One Of The Most Important Decisions You May Ever Make

Reprinted from West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc.

Guardian and Ward - The legal relationship that exists between a person (the guardian) appointed by a court to take care of and manage the property of a person (the ward) who does not possess the legal capacity to do so, by reason of age, comprehension, or self-control.

The term guardian refers to a person appointed by a court to manage the affairs of another person who is unable to conduct those affairs on his or her own behalf. The term is most often applied to a person who is responsible for the care and management of an infant, which in legal terms is a person below the age of majority. Thus, children who have not reached adulthood (usually age 18 or 21) must, with some exceptions, have a legal guardian.

Courts also appoint guardians to supervise the property and personal well-being of adults who cannot manage their affairs. Persons incapacitated because of mental or physical illness, drug or alcohol abuse, or other disability may require the appointment of a guardian to ensure the conservation of their Personal Property and to oversee their day-to-day personal care. The term conservator is often used for a person designated to manage the property of an adult who is unable to do so.

The law of guardianship is based on the Common Law and has been the province of state government. This law has been modified by state statutes. For example, Section V of the Uniform Probate Code, a model set of procedures governing the administration of trusts and estates, contains rules that guide courts in managing guardianships.

The Uniform Probate Code (1969), adopted by virtually every state, has done much to streamline probate law. In 1982, provisions of the code were updated via the Uniform Guardianship and Protective Proceedings Act (UGPPA). As legislation changed, and issues arose concerning the protection of wards, the UGPPA underwent scrutiny. The act was revised over the course of several years and, in 1997, it was officially approved by the National Conference of Commissioners on Uniform State Laws. The act updated procedures for appointing guardians and conservators and provided due process protection for adults who are incapacitated.

There are two basic types of guardians: of the person and of the property. A guardian of the person has custody of the ward and responsibility for the ward's daily care. A guardian of the property has the right and the duty to hold and manage all property belonging to the ward. A ward usually has a general guardian, who supervises both the person and the property, but in some circumstances it is necessary and convenient to divide responsibilities.

Persons for Whom a Guardian Is Appointed

A guardian cannot be appointed for a person unless that person is in need of supervision by a representative of the court. The natural guardian of a child is the child's parent. A parent can lose this status by neglect or Abandonment. In addition, when both parents die, leaving a minor child, the court will often appoint a guardian.
Guardians can also be appointed in medical emergencies. If a parent refuses to permit necessary treatment for a child, such as a blood transfusion or vaccination, the court can name a temporary guardian to consent to such treatment. An adult has the right to refuse medical treatment, even if his or her life is in immediate danger. However, if there is evidence that the adult is not thinking clearly or is not making the decision voluntarily, a guardian can be appointed to make the decision.

Selection of a Guardian

Courts of general jurisdiction in most states have the authority to appoint guardians. Typically, probate courts and juvenile courts hear cases involving guardianship. Probate courts, which oversee the administration of the estates of decedents, are the most common forum for the appointment of guardians. Juvenile courts decide on the appointment of guardians when a child has been removed from the home because of abuse or neglect, or has been declared a ward of the court. Generally, a court can appoint a guardian for a minor wherever the child lives. If a child lives in one state and has title to real estate in another state, a guardian can be appointed where the property is, in order to manage it.

A parent can appoint a guardian, usually by naming the guardian in a will. Some state laws allow a child to choose his or her own guardian if the child is over a certain age, usually 14. A court must approve the choice if the proposed guardian is suitable, even if the court believes someone else would be a better choice. Before approving the child's choice, however, the court must satisfy itself that the child understands the effect of the nomination and that the choice is not detrimental to the child's interests or contrary to law.

Guardianship statutes specify which persons have the right to ask a court to appoint a guardian for a certain child. Most of these laws list people who would be expected to have an interest in the child's Welfare, usually relatives. Some statutes are more general, permitting applications to be filed by "any person." A court must examine a petition to determine whether the person applying for appointment as guardian really has the child's interest at heart.

Factors in Choosing a Guardian

The choice of a guardian for a child is guided by the needs of the ward. The ward's age, affections for certain people, education, and morals are all important considerations. Courts prefer to allow a child to remain with a competent person who has been caring for the child rather than disrupt a stable home. Courts also examine the financial condition, health, judgment, morals, and character of the person who seeks guardianship of the ward.

Although age alone is not a determining factor, it may be material to the individual's ability to fulfill the duties of guardian for the entire period of guardianship. Affluence is not a prerequisite for a guardian, although a guardian must be reasonably secure financially. As a rule, courts attempt to entrust the care of a child to someone with the same religious background as the child's.

A divorced parent is not disqualified from appointment as guardian of a child's property simply because the Divorce decree has awarded the other parent custody. The court almost always favors a parent over other relatives or someone not related to the child unless there is reason to believe the parent is not a fit guardian. A close family member is not disqualified from caring for a child whose property he or she is eligible to inherit, unless it appears that he or she is unkind to the child or concerned only with the wealth to be gained from the child's property.

Sometimes the responsibilities of guardianship are divided between two people. In one case, a mother continued to have custody of her children after her husband's death, but the court refused her request to be appointed guardian of the children's estates because she dissipated the family allowance. A parent can also be disqualified under different statutes for "notoriously bad conduct," by "willfully and knowingly abandoning the child," or for "failing to maintain the child" when he or she has the financial ability to contribute to the child's support.

Manner and Length of Appointment

Once a guardian is selected, he or she can be required to take an oath of office before performing the duties of guardian. Statutes generally require a guardian to post a bond, that is, pay the court a sum of money out of which a ward can be reimbursed if the guardian fails to perform the duties faithfully. These laws also permit the court to waive this requirement if the ward's property is of relatively little value or if the guardian managing the property is a financial corporation, such as a bank or a trust company.

The formal appointment of a guardian is completed when the court issues the guardian a certificate called letters of guardianship. The naming of a guardian in a parent's will is only a nomination. The court must issue the letters of guardianship before a guardian has the legal authority to act.

Generally, a guardian's authority continues as long as the ward is below the legal age of majority. If the ward marries before reaching the age of majority, guardianship of the person ends. Under the law of some states, guardianship of the property continues until he or she reaches the age of majority. For an adult ward, guardianship ends when a court determines the ward no longer needs supervision.

A guardian can be divested of authority whenever a court is convinced that he or she has neglected the duties of guardian or mismanaged property. In some cases, courts have ordered partial removal. For example, a father who has squandered money that should have remained in his children's bank accounts can continue to have personal guardianship of them, while someone else acts as guardian of their property.

Duties and Responsibilities of a Guardian

Generally, a guardian acts as guardian of both the person and the property of the ward, but in some circumstances these duties are split. When acting as guardian of the person, a guardian is entitled to custody and control of the ward. Some statutes make a specific exception when a child has a living parent who is suitable to provide daily care. The guardian then manages the child's property, and the parent retains custody. The rights and responsibilities associated with the child's daily care belong to the parent, but the guardian makes major decisions affecting long-term planning for the minor.

A guardian of the person of a child can prevent certain people from seeing the ward, but a court will not allow unreasonable restrictions. A guardian also has the right to move to a different state with the child, but can be required to appear in court prior to relocation and give assurances regarding the child's care. A guardian has the duty to provide for the child's support, education, and religious training. Courts permit a guardian to use income and interest earned by the child's assets to pay for the child's needs, but they are reluctant to permit the guardian to spend the principal. A parent is primarily responsible for the support of a child, so when a parent is living, his or her money must be used before the child's resources are spent. The child has a right to receive all of his or her property upon reaching the age of majority, unless restrictions are imposed by a will or a trust instrument.

A general guardian or a guardian of the property is considered a fiduciary—a person who occupies a position of trust and is legally obligated to protect the interests of the ward in the same manner as his or her own interests. A guardian cannot invest the ward's money in speculative ventures, agree not to sue someone who owes the ward money, or neglect legal proceedings, tax bills, or the maintenance of land, crops, or buildings that are part of the ward's estate. In addition, a guardian cannot allow someone else to maintain a business that the ward inherited or permit someone else to hold on to property belonging to the ward, without supervising such transactions. A guardian must earn income from the ward's property by making secure investments.

A guardian must take inventory and collect all the assets of the ward. Where permitted by law, title is taken in the ward's name. Otherwise, the guardian owns the property "as guardian" for the ward, which indicates that the guardian has the legal right to hold or sell the property but must not use it for his or her personal benefit. The guardian must determine the value of the property and file a list of assets and their estimated value with the court. The guardian must collect the assets promptly, and is liable to the ward's estate for any loss incurred owing to a failure to act promptly.

In general, a guardian does not have the authority to make contracts for the ward without specific permission from the court. If the child is party to a lawsuit, a guardian cannot assent to a settlement without first submitting the terms to the court for approval. A guardian must deposit any money held for the ward into an interest-bearing bank account separate from the guardian's own money. A guardian is also prohibited from making gifts from the ward's estate.

Generally, a guardian cannot tie up the ward's money by purchasing real estate, but can lend the money to someone else buying real estate if the property is sufficient security for the loan. A guardian cannot borrow money for personal use from the ward's estate. A guardian can lease property owned by the ward, but ordinarily the lease cannot extend beyond the time the ward reaches the age of majority. A guardian cannot mortgage real property or permit a lien on personal property of the ward. A guardian can sell items of the ward's personal property, but must receive the permission of the court to sell the ward's real estate.

At the end of the guardianship period, a guardian must account for all transactions involving the ward's estate. The guardian is usually required to file interim reports periodically with the court, but a final report must be filed and all property turned over to the ward when the ward has reached the age of majority. If the guardian has not managed the property in an ethical manner, the ward, upon reaching adulthood, may sue for waste, conversion, or Embezzlement. If the management of the ward's assets was not illegal but resulted in losses, the guardian must reimburse the ward. If the guardian has managed the assets correctly, the guardian is entitled to be paid out of the ward's estate for his or her services.

Finally, whenever a guardian participates in a lawsuit for the ward, he or she sues or is sued only "as guardian,"and not personally. For example, if the ward sues a physician for Malpractice and recovers damages, the money does not belong to the guardian even though he or she initiated the lawsuit for the ward. In the same way, if someone obtains a judgment for damages against the ward, the money must come from the ward's property, not from the guardian. If both the guardian and the ward are parties in one lawsuit, the guardian participates in the action as both a guardian and an individual.

Further readings

Barnes, Alison McChrystal. 2003. "The Liberty and Property of Elders: Guardianship and Will Contests as the Same Claim." The Elder Law Journal 11 (spring): 1–36.
——. 2003. "What Counsel for the Ward Can Learn from Will Contests." Elder's Advisor (Winter).
English, David M., and Rebecca C. Morgan. 2000. "The Uniform Guardianship and Protective Proceedings Act of 1997." Journal of Elder Law and Policy (November 15).
Frolik, Lawrence A. 2002. "Promoting Judicial Acceptance and Uses of Limited Guardianship." Stetson Law Review 31 (spring): 735–55.
McConnell, Joyce E. 1998. "Securing the Care of Children in Diverse Families: Building on Trends in Guardianship Reform." Yale Journal of Law and Feminism 10 (summer): 29–67.
Zimmy, George H., and George T. Grossberg, eds. 1998. Guardianship of the Elderly: Psychiatric and Judicial Aspects. New York: Springer Pub. Co.

Comments are closed.