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Courts appoint guardians to care for people who cannot take care of themselves. The person a guardian protects is called that guardian's ward. Wards may be either minor children or incapacitated adults. In some other jurisdictions, "custodial" or "conservator" is used instead of "guardian," and some jurisdictions use different terms to refer to different types of guardianships, for example calling the protector of elderly wards a "conservator" while calling the protector of minor children wards a "guardian." Where appropriate, courts may appoint guardians with limited authority. Guardians are fiduciaries of their wards. See, e.g., Francine M. Neilson v. Colgate-Palmolive Co., 199 f.3d 642 (2d Cir. 1999).

Guardians: an Overview


Laws Regulating Guardians

Guardians are regulated by state and local statutes. Because guardians exercise considerable control over wards' lives and assets, they are subject to continuing court oversight after their appointment. Guardians responsible for their wards’ finances usually must regularly prepare an accounting statement for the court. In most jurisdictions, these statements must be submitted annually, and are in addition to a final accounting due when the guardianship ends. In addition, either the court or a third-party may object to guardians' management of their wards' estates. Guardians must obtain court permission for large or unusual expenditures. Guardianship issues are usually heard by a probate court, family court, or some other court of limited jurisdiction.

A court may not terminate parents' parental rights via a simple guardianship hearing. See Child Custody.


Guardians' Duties

Guardians have a duty to act in their wards' best interests. They have no duty to respect their wards' wishes. They have complete control over their wards' finances, property, and care. For example, guardians are responsible for paying their wards' bills, making their wards' living arrangements, overseeing their wards’ medical treatment, and, in the case of minor wards, insuring that they receive a good education.

Guardians are entitled to reasonable compensation from their wards, as well as reimbursement for expenses made on their wards' behalf. Whenever possible, guardians must cover expenses out of their wards' income. They may, however, liquidate some or all of their wards' assets with permission from the court.

Guardians represent their wards in all legal actions, unless the wards' interests conflict with the guardian's. For example, this authority allows guardians to accept or decline settlements and choose whether or not to pursue a claim.


Appointing a Guardian

When appointing a guardian, courts must act in the prospective ward’s best interests. They may consider any relevant characteristics of the guardian, including but not limited to the guardian's finances, health, education, trustworthiness, and relation to the prospective ward. The court may consider the prospective ward’s opinion, but need not defer to it. The court may not appoint a guardian whose interests conflict with the ward's. Before becoming a ward's guardian, a would-be guardian must post a surety bond. Most jurisdictions allow any competent person to petition to be an incompetent person's guardian, regardless of their relation with the proward.

A court may not appoint a guardian for someone unless that person is legally incompetent. For example, in most states anyone under 18 is presumably incompetent to manage their own affairs, and all states allow a court to declare a person incompetent after a hearing. These hearings are frequently combined with hearings to appoint a guardian. See Incompetence.

Usually, in a hearing to appoint a guardian, there are no formal plaintiffs and defendants, and all parties are presumed to be working in the prospective ward's best interest. Furthermore, guardianship hearings are civil, not criminal. Thus, even though a choice guardians can substantially impact a ward's live and liberty, wards do not enjoy many of the procedural protections available in typical cases. Similarly, even though guardianship hearings may involve aggressive attacks against prospective guardians' credentials and character, the targeted guardians do not have the right to respond as they would if they were, for example, parties in a normal civil action. The precise procedural and substantive rules governing guardianship hearings and their participants varies by jurisdiction. See Incompetence.

For example, if a sister and brother each want to be their mother's guardian, and the sister produces an affidavit attacking the brother's qualifications, in some jurisdictions, the affidavit would be admissibile evidence, and the brother would not have a right to interrogate the person who wrote it. In a typical  civil or criminal case, the affidavit would normally be inadmissible as hearsay


Temporary Guardians

Some jurisdictions have special procedures that allow courts to rapidly appoint a temporary guardian in an emergency. These special procedures allow courts to bypass many of the potentially time-consuming portions of guardianship proceedings and, in some cases, allow a judge to appoint a guardian without any hearing at all. For example, a judge might appoint a temporary guardian for a seriously ill child whose parents refused to allow medical treatment, or for an elderly person who posed on immediate threat to herself or others. The availability and characteristics of temporary guardianship proceedings vary by jurisdiction.


Who Becomes a Guardian?

Guardians can be split into roughly three types. First, some guardians are friends or family members of their ward. For example, an adult child might become the guardian of an elderly, mentally ill parent. Second, in some jurisdictions, there is a public guardians . Similarly, some government institutions act like guardians, even though they are not officially designated as a guardian. For example, some government protective agencies fulfill many functions traditionally performed by guardians, even though they are not technically considered guardians by the courts and are not subject to close court oversight. The role of public guardians and agencies varies by jurisdiction. Third, some people are professional guardians. They are often attorneys or other professionals who serve as guardians when more traditional candidates are unwilling or unable to provide wards with the care they need.


Limits on Guardians’ Authority

Courts may limit guardians' authority. "Guardians of the Estate" only manage their wards' financial assets. "Guardians of the Person" have no authority over their wards' assets, but are otherwise responsible for their wards' care and well being. In some jurisdictions, guardians of the estate are called "conservators," while guardians of ther person are called "guardians." A court must have personal jurisdiction over a prospective ward to appoint a guardian of the person, but only needs in rem jurisdiction over the guardian's in-state real property to appoint a guardian of the estate whose authority is limited to that property. This can result in a single ward having multiple guardians of the estate spread out over several states.


Terminating Guardianship

There are several ways that a guardianship can end. First, the court that appointed a guardian may subsequently dismiss that guardian, either on request or on its own. Secondly, a guardianship ends at the death of the ward. Third, a guardian of a minor child automatically ceases to be the child's guardian when the child comes of age. Finally, in some jurisdictions, a guardianship automatically ends if the ward marries. In some of these jurisdictions, marriage terminates guardianships of the person, but not guardianships of the estate.


Practical Difficulties

Even when everyone acts in good faith, contested guardian hearings can be incredibly difficult, time-consuming, and expensive. They can drag long-running, highly emotional family disputes into court rooms, frustrating judges and bogging down court proceedings. Because it can be very difficult to evaluate guardianship candidates, the process may involve multiple expert witnesses and and aggressive attacks on potential guardians credentials and character. Meanwhile, the would-be ward might vehemently deny that she is incompetent in the first place. During this process, legal fees continue to mount. Some judges simply cut through the process by appointing a professional guardian, often one the judge knows and trusts. This usually angers all other parties involved. Furthermore, after a guardian is appointed, well-intentioned relatives can repeatedly drag the matter back into court by challenging the guardian's qualifications and decisions.

When one or more parties act in bad faith, appalling miscarriages of justice can occur. wards, like children, have little ability to legally challenge their guardians' decisions. They may not personally get a lawyer to sue their guardian or speak to the court on their behalf, because their guardian controls their finances and legal actions. Although others can challenge guardians' actions on wards' behalf, challenged guardians can use their wards' assets to pay the resulting legal fees. This problem is compounded because judges, plagued by crowded dockets, often lack the time or patience to deal with seemingly hysterical relatives who often represent themselves and have little understanding of how the legal system works. Finally, judges often do lack the time, training, or inclination to carefully monitor guardians' accounts and decisions, further limiting courts’ oversight of guardians. Thus, families concered that a guardian is looting her ward's estate are stuck in a tragic Catch-22.



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