September 12, 2011

When a person is unable to fend for herself, whether because she is a parentless child or an adult who suffers from mental retardation, mental illness, substance abuse, or dementia, those around her may discuss the possibility of guardianship. Unlike voluntary measures short of guardianship, like setting up a joint bank account (where two people share control of funds), a representative payee (when one person looks after another person’s government benefits), a conservatorship, a trust, or a power of attorney (voluntary arrangements that can be similar in scope to a guardianship), a true guardianship is rare and serious and may be established only by a court of law. This court, commonly called the county Probate Court, declares or appoints one person (the guardian) to protect the interests of another (the ward), whether the ward likes it or not.

A guardian of the person is authorized to only make medical decisions, including the ward’s living arrangements, and to monitor closely the ward’s needs and standard of living. (Legal documents called a durable health care power of attorney or a living will may alleviate the need for a guardianship of the person.) A guardian of the estate makes all financial decisions. (Again, legal documents called a durable general power of attorney or living trust may keep these matters private, out of court.)

The prospective ward has the right to resist the guardianship process and to have a say in who is appointed guardian, and next of kin are notified as well. Because such important rights are at stake, the process is a matter of public record and the ward’s privacy (concerning medical and financial information that is usually confidential) is sacrificed for the sake of her safety and well-being. If the prospective ward cannot afford an attorney, one may be appointed for her by the court. Sometimes a parent is known as the natural guardian of a child, but someone (not always the natural parent) must be appointed guardian of the estate for a child who is to receive a substantial sum of money (usually around $10,000 or more) as an inheritance or personal injury recovery, to make sure that the funds are spent on the child or saved for the child’s future. Some states have laws permitting or forbidding a person from applying for guardianship over a child just so the child may attend school as a resident of a particular school district. Sometimes a court will appoint what is called a guardian ad litem just for the purpose of protecting a minor or incompetent person’s rights during the course of a lawsuit. A limited guardian or emergency guardian may be appointed for a one-time purpose: to make a critical medical decision or stop a person who is unable to control her spending habits.

The application and appointment process can be cumbersome and expensive. Legal paperwork often includes an application, a statement by a physician documenting the medical need for such an extreme measure, a court investigator’s report, posting of a bond by the guardian (protecting the ward’s funds if the guardian were to misuse or steal the funds), and oaths and affirmations promising the court that the guardian understands all the rights and responsibilities of serving in this position of trust (called a fiduciary relationship). The prospective ward as well as all of the ward’s next of kin are notified of the impending guardianship hearing.

At the hearing, a probate judge or magistrate listens to all those who have gathered and decides not only whether to establish the guardianship at all, but also determines whether or not the prospective guardian, or an alternative, can be trusted to act in the ward’s best interests. If the prospective ward, for example, an elderly person suffering from Alzheimer’s disease, had named her preferred guardian in a power of attorney or other document, the court will take that expressed preference into consideration. Sometimes the court will appoint a relative to serve as guardian of the person and a bank to serve as guardian of the estate or a single person will be appointed to serve in both capacities.

During the course of a guardianship, the guardian asks the court for permission to spend or invest the ward’s funds and makes periodic accountings to the court showing how much money comes and goes and for what kinds of purchases, as well as reports to the court confirming over time whether the ward still needs a guardian. A guardian must continually show the court that all decisions on the ward’s behalf are in the ward’s best interests, not merely convenient for the guardian, and that all funds are being spent on the ward or her dependents, designed to maintain the ward at a standard of living that matches the size of her estate and her medical and other needs.

If the ward has enough money, the court may allow the guardian reasonable compensation from the ward’s estate. The guardian does not risk her own money by serving as a guardian and as long as she takes reasonable steps to protect her ward, should not be liable for the ward’s actions that are out of her control.

Once a particular guardian is appointed (whether a person or an institution like a bank or a nonprofit group), it can be difficult to change guardians or have the entire guardianship terminated. Once a child turns 18, the guardianship ends and any funds held in her guardianship then belong to her outright. If a ward who had been declared incompetent regains her ability to take care of herself and manage her money, she may seek to terminate the guardianship. In extreme cases, where the court learns about a guardian’s abuse of the ward or the ward’s funds, the court may remove and replace the guardian. The Roman satiric poet Juvenal once wrote: Sed quis custodiet ipsos custodes? But who will guard the guardians themselves? We rely on our local county probate courts to keep an eye on those who serve as guardians for our society’s most vulnerable members.

SEE ALSO: Conservatorship, Durable power of attorney for health care

Suggested Reading

  • American Bar Association. (1988). Life services planning: Support services and alternatives to guardianship. Chicago: American Bar Association.
  • Robertson, Edward D. Jr. (1991). Personal autonomy and substituted judgement: Legal issues in medical decisions for incompetent patients. Corpus Christi, TX: Diocesan Press.
  • Shmidt, Winsor C. Jr. (1995). Guardianship: Court of last resort for the elderly and disabled. Durham, NC: Carolina Academic Press.


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