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Guardians are legal representatives appointed by a court to take care of individuals who are unable to take care of themselves. The person for whom a guardian is appointed is referred to as the ward. Wards can be either minor children or adults who are considered incapacitated. In certain jurisdictions, terms such as "custodial" or "conservator" may be used instead of "guardian," and different terms may be used to refer to different types of guardianships, such as "conservator" for elderly wards and "guardian" for minor children wards. The court may also appoint guardians with limited authority when deemed appropriate. Guardians have a fiduciary duty to their wards, meaning they are legally obligated to act in the best interest of their wards. This is exemplified in the case of Francine M. Neilson v. Colgate-Palmolive Co., 199 f.3d 642 (2d Cir. 1999).

Laws Regulating Guardians

State and local statutes regulate guardians. Consequently, they are subject to continuing court oversight after their appointment, due to the control they have over wards' lives and assets. Typically, a guardian must render an accounting statement for the court on a yearly basis, plus a final one when the guardianship terminates. Additionally, either the court or an outside party may raise objections to their management of their wards' estates. For large or extraordinary expenditures, guardians need to receive court authorization. In many jurisdictions, these matters are usually heard by a probate court, family court, or another court with limited jurisdiction.

Guardian Duties

Guardians have a duty to act in the best interests of their wards. They have no duty to respect their wards' wishes. They are in complete control of their wards' finances, property, and care. A guardian, for example, is responsible for paying their wards' bills, making living arrangements, overseeing their wards' medical treatment, and making sure minor wards receive a good education.

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 wards. 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. A court may not appoint a guardian for someone unless that person is legally incompetent. See: Incompetence.

  • 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. 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 of guardian can substantially impact a ward's life 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 vary by jurisdiction. 

  • 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 admissible 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 an immediate threat to themself or others. The availability and characteristics of temporary guardianship proceedings vary by jurisdiction. 

Terminating Guardianship 

There are various methods by which a guardianship can come to an end. The court that appointed the guardian may dismiss the guardian at the request of the guardian or the court's own accord. Additionally, the guardianship terminates upon the death of the ward. A guardian appointed for a minor child will no longer be the child's guardian once the child reaches legal age. In certain jurisdictions, the guardianship also ends if the ward gets married, although in some of these jurisdictions, the guardianship of the person ends and not the guardianship of the estate.

[Last updated in January of 2023 by the Wex Definitions Team]