© 2016 - U.S. Legal Forms, Inc
USLegal Guide to
Legal Guardianships
I NTRODUCTION
A guardianship is a legal
relationship created
when a person or
institution named in a
will or assigned by the
court to take care of
minor children or
incompetent adults.
Sometimes called a
conservatorship.
A guardian is someone
who is chosen, either by
a court or by being
named in a will, to make
decisions for someone
else when that person—
generally referred to as
the ward—cannot do the
same for him or herself.
These types of decisions
include: giving consent
to medical care or
treatment; purchasing or
arranging for purchase
of such necessities as
food, clothes, cars,
household items, and
other personal items;
arranging for education;
and managing finances
and bank accounts.
A guardianship requires
that someone act on
behalf of and protect the ward during the period
of time when the ward is
incapable of doing so.
When asking the court
appoints a guardian in a
particular situation, the
court must be sure that
the potential ward is
incapacitated and cannot
make decisions for him
or herself because of a
mental or physical
disability, disease, or
addiction to alcohol or
other drugs. The fact
that potential wards are
minors who lack
someone to make certain
decisions on their behalf
until they reach the age
of majority is also
sufficient reason to ask
the court to appoint a
guardian.
The selection of a
guardian is an extremely
important task. Certain
people, with ties to the
ward, are preferred by
courts as possible
guardians. These include
the person designated by
the ward, before the
period of incapacity
occurred, by legal
document or otherwise
to handle his or her
affairs; the spouse;
parents; or another
relative; or a state
employee or private
person familiar with the
ward and the incapacity
at issue. Whoever is
chosen by the court must be willing and able to
perform the duties at
hand and to represent
the best interests of the
ward. In selecting the
guardian, the court
considers the
prospective guardian’s
character, history,
physical capacity, and
other relevant attributes.
A potential guardian’s
limited education or
financial resources are
not disqualifying
conditions in and of
themselves.
The guardianship
statutes of each state
detail the specific duties,
responsibilities, and
powers of the guardian.
They should be
examined in order to
determine the
regulations that apply to
each situation.
If an individual becomes
unable to handle his or
her own affairs there are
two major areas of
concern. These are the
individual’s physical
welfare decisions and
the management of the
individual’s finances. A
guardianship is the
appointment of an
individual to provide
care and to make
personal decisions for a
minor or incapacitated
person. A guardian may
be nominated by a Will,
by a trust document, or
by any via a petition
with the court. The
person for whom a
guardian is appointed is
called a ward. Generally,
the ward cannot provide
food, clothing, or shelter
for himself or herself
welfare without
assistance. A
conservatorship is
typically the
appointment of an
individual or a
corporation with trustee
powers, to manage the
financial affairs of a
minor or other person
who cannot manage his
or her own financial
matters. A conservator is
typically not authorized
to make decisions
regarding the personal
care as a guardian does.
The person for whom a
conservator is appointed
is called a protected
person. The court may
appoint a conservator for
a single transaction or
indefinitely. A person
may need a guardian or
a conservator or both
and the same person can
be appointed in both
capacities.
T EMPORARY AND P LENARY
G UARDIANS D EFINED
Temporary
guardianships are
generally granted by the
courts to achieve a
specific purpose for a certain amount of time.
Once the purpose is
accomplished, the
guardianship is
terminated.
A plenary guardian is a
person appointed by the
court with the power to
exercise all legal rights
and duties on behalf of a
ward after the court
makes a finding of
incapacity. It is a
guardian of both the
person and the estate.
G UARDIANSHIP OF A M INOR
To become a guardian of
a child either the party
intending to be the
guardian or another
family member, a close
friend or a local official
responsible for a minor's
welfare will petition the
court to appoint the
guardian. The
guardianship of a minor
remains under court
supervision until the
child reaches majority at
18. The judge does not
have to honor the
request when someone is
named in a will as
guardian of one's child
in case of the death of
the parent, it is
construed as a
preference, but is
usually honored. The
term "guardian" may
also refer to someone
who is appointed to care
for and/or handle the affairs of a person who
is incompetent or
incapable of
administering his/her
affairs. Guardians must
not benefit at the
expense of those they
care for (wards), and in
many cases are required
to make accountings to
the court on a periodic
basis. In some courts, a
guardian may be
reimbursed for attorney
fees related to the
guardianship. Court
rules regarding
accountings of expenses
and requirements of
guardians vary and local
court rules should be
consulted.
In some states, if the
child is a certain age or
older, the court must
appoint the person
nominated by the child
unless the court finds the
nomination contrary to
the child’s best interest.
The court may not
appoint a person against
whom the child has filed
a written objection. In
adult guardianships, the
judge is often required
to make a reasonable
effort to consider the
preference of the person
with a disability in
selecting the guardian.
The judge typically does
not have to follow the
person's wishes, but
must give due
consideration to the
preference of the person
with a disability. Laws
vary by jurisdiction, so
local laws should be
consulted for specific
requirements in your
area.
A guardianship of a
child takes away the
parents' right to make
decisions about their
child's life. However, it
does not permanently
terminate parental rights.
This means that
although the guardian
now has custody and is
responsible for raising
the child, the parents are
still the child's legal
parents.
The court can order a
guardian to let the
parents visit or contact
the child, but the court
may also put limits or
other conditions on the
visitation, such as
requiring that any
visitation be supervised.
The time and frequency
of parental visitation is
often is up to the
guardian (or the court)
to decide. Parents may,
in some cases, regain
custody of their child in
the future if the court
determines the
guardianship is no
longer in their child's
best interests. Local laws vary, but
many courts require
certain interested parties
to be served with notice
of guardianship
hearings. Such notices
often have to be legally
served upon the person,
with a sworn statement
of the person making the
service later returned to
the court as proof of
such service. In some
cases, the court may
waive the notice
requirements. Local
court rules should be
consulted to determine
applicability in your
area.
G UARDIANSHIPS FOR
D ISABLED P ERSONS
State statutes define
mental and physical
disability. However,
generally, such disability
or incapacity involves
severe and long-term
conditions that impose
great limitations upon
individuals' ability to
take care of themselves,
express themselves
verbally, earn a living,
and live independently
of the care of others.
Such a disability also
reflects the necessity for
a combination of
treatments and services.
Guardianships for
physically or mentally
disabled or incapacitated
persons have, in recent decades, been
understood to facilitate
the independence and
self-reliance of the ward.
They are limited as
much as is reasonable in
order to allow wards to
exercise as much control
over their lives as
possible while
maintaining as much
dignity and self-reliance
as possible. The desires
of the wards are given
primary consideration.
Also, wards are allowed
to do as much of their
own care giving as is
physically and mentally
possible.
The guardian will be
granted only those
powers necessary to
accomplish for the ward
what the ward cannot
accomplish
independently. These
powers may include
assuring the availability
and maintenance of care
for the ward, making
sure that educational and
medical services are
maintained and
adequate, and submitting
updates to the court of
the ward's condition.
These court updates
describe the ward's
living situation, status of
mental and physical
health based upon
medical examinations
and official records,
provide a list of services
being received by the
ward, describe services
rendered by the
guardian, account for the
ward's monetary assets,
and any other
information necessary to
submit to the court in
order for it to assess the
status of the ward and
the guardian's duties.
An incompetent adult or
minor child may have
the assistance of a court
appointed guardian. An
individual is determined
incompetent if s/he is
mentally impaired due to
mental or physical
illness or disability,
mental retardation or
chronic substance abuse
to the point that s/he
cannot take proper care
of him/herself, his/her
property or those for
whom s/he is legally
responsible. The court
will determine an
individual is
incompetent and in need
of a guardian of the
person if the court finds
that due to the
impairment the person is
unable to effectively
receive and evaluate
information or to make
or communicate
decisions to the extent
that s/he is unable to
prevent financial
exploitation. The court may give the
guardian authority to
make personal decisions
for the ward, including
providing informed
consent for health care
and medication. This
type of guardian is a
“guardian of the
person.” The court also
can give the guardian
authority to manage the
ward’s money and
property. This type of
guardian is a “guardian
of the estate.”
A physical disability
without an
accompanying mental
incapacity is insufficient
to establish
incompetence for the
purposes of appointing a
guardian. In this regard,
the court’s focus is on
the functioning of the
person’s mind and not
an impairment that
affects control of bodily
functions.
The court must
determine that the
physical impairment
causing the incapacity is
accompanied by a
developmental
disability, a serious and
persistent mental illness,
a degenerative brain
disorder such as
dementia, or a traumatic
brain injury. The
disability or incapacity
must involve severe and long term conditions that
impose great limitations
upon the individuals’
ability to take care of
themselves, express
themselves verbally,
earn a living, and live
independently.
However, the evidence
before the court must be
clear and convincing
that the person is
incompetent.
In their role guardians
facilitate the
independence and self-
reliance of the ward.
The guardian is granted
only those powers
necessary for the ward
to accomplish what s/he
cannot accomplish
independently. The
powers may include
assuring the availability
and maintenance of care
for the ward and
ensuring that
educational and medical
services are maintained
and adequate. A
guardian is required to
submit updates to the
court as to the status of
the ward and the
guardian’s duties
J UDICIAL A PPOINTMENT OF
A G UARDIAN
The Probate Court has
the power to appoint any
adult as a guardian to
assume responsibility
for the care and
management of the
person, the estate, or
both, of an incompetent
person. However, a
minor over 14 or a
minor’s parents by will
may suggest a guardian
for a minor. Moreover,
a competent adult may
nominate a guardian to
serve in the event of
incapacity. The application for
guardianship is filed in
the Probate Court of the
county of the ward’s
residency by an
interested party, or on
the court’s own motion.
The application must
include a statement of
the guardian’s
willingness to perform
as guardian and a bond
as required by law. In
the case of a prospective
incompetent ward the
application must include
a statement of the
ward’s mental and
physical condition from
a treating physician,
psychiatrist, or licensed
psychologist. As
prescribed by law, the
prospective ward as well
as the adult next of kin
is to be notified of the
impending guardianship
and date and time of
hearing. In the case of an
incompetency
proceeding, a court
investigator will serve a
notice and a statement of
rights on the prospective
ward. The court
investigator then
conducts an
investigation which
includes an interview
with the prospective
ward in order to assist
the court in determining
the advisability of
guardianship.
Thereafter, a formal
hearing is conducted by
the Judge or Magistrate
to determine if a
guardianship is
necessary, the guardian
is suitable, and the
guardian understands
these duties. The
prospective ward has the
right to be present at the
hearing to contest any
application for
guardianship and to be
represented by an
attorney. Generally, the
court will appoint a
guardian after hearing
evidence that a person is
incapable of making
decisions.
D UTIES OF A G UARDIAN
The court may authorize
the guardian to exercise
power over the ward if it
finds by clear and
convincing evidence that
the ward lacks
evaluative capacity to
exercise power on
his/her own. The court
will only authorize the
guardian to exercise
power that is necessary
to provide for the ward’s
personal needs, safety,
and rights and in a
manner that is
appropriate to the
individual ward. In
addition, a guardian
must exercise powers in
a manner that provides
the least restrictive form
of intervention.
The powers that the
court may transfer to the
guardian of the person in
full or in part include:
• the power to provide
informed consent to
voluntary or involuntary
medical examination
and treatment if it is in
the ward’s best interest.
• the power to consent to
experimental treatment
if the court finds that the
ward’s mental or
physical condition is
life-threatening and the
court decides that the
proposed experimental
treatment is in the
ward’s best interest;
• the power to provide
informed consent to
social and supported
living services; • the power to provide
informed consent to the
release of confidential
records other than court,
treatment, and patient
health care records;
• the power to make
decisions related to
mobility and travel;
• the power to choose
providers of medical,
social, and supported
living services;
• the power to make
decisions regarding
initiating a petition for
the termination of
marriage;
• the power to receive all
notices on behalf of the
ward;
• the power to act in all
proceedings as an
advocate of the ward;
• the power to have
custody of the ward; and
• any other power the
court specifically
identifies. P OWER OVER A W ARD ’ S
P ROPERTY
A guardian of the estate
is required to:
• provide the ward with
the greatest amount of
independence and self-
determination with
respect to property
management in light of
the ward’s impairment;
• consider the ward’s
personal preferences and
desires;
• take any action that is
the least restrictive form
of intervention;
• use the judgment and
care that persons of
prudence, discretion,
and intelligence exercise
in managing their own
affairs;
• use the ward’s income
and property to maintain
and support the ward
and any of the ward’s
dependents;
• determine if the ward
executed a will and, if
so, the will’s location
and the appropriate
persons to be notified of
the ward’s death;
• upon the ward’s death,
deliver the ward’s assets
to the entitled persons;
• file a sworn statement
with the register of
deeds of any county in
which the ward
possessed real property,
describing the property
and the date the ward
was determined to be
incompetent;
• notify the court of any
change of address of the
guardian or the ward;
and
• perform other duties as
required by the court.
If not limited by the
court, the guardian has
authority to take the
following actions
without prior court
approval:
• support another
individual whom the
ward is legally obligated
to support;
• enter into a contract on
behalf of the ward;
• exercise the ward’s
options to purchase
securities or other
property;
• authorize access to or
release of the ward’s
confidential financial
records;
• apply for public and
private benefits on the
ward’s behalf; • pay the ward’s legally
enforceable debts,
including any taxes
owed;
• retain real or personal
property that the ward
already possesses or
acquires by gift or
inheritance during the
tenure of the guardian;
• settle the ward’s claims
and accounts; and
• appear for and
represent the ward in
actions such as court
hearings.
G UARDIAN A CCOUNTING
Guardians are appointed
to manage the property
of persons who are
unable to manage the
property for themselves.
Generally, the court
appoints a guardian for
persons who are either
mentally incapacitated
or are minors. The
persons for whom
guardians are appointed
by the court are called
“wards”. If the ward has a large
estate or trust, the Court
may appoint a
conservator for the
utilization of the funds.
In most cases however,
the everyday oversight
of the ward’s funds will
be the guardian’s
responsibility. The
guardian is not expected
to use his or her own
funds for the ward and
the guardian is required
to the use the ward’s
funds for the ward’s
support. Depending
upon the laws of the
state where the ward
lives, some of these
duties and
responsibilities will
require court approval,
while others will not.
Of the different types of
duties and
responsibilities entrusted
to the guardian, the duty
of accounting and
financial management is
the most important. The
guardian is required to
use reasonable care and
caution when handling
the financial resources
of the ward. The
guardian should also
maintain proper
accounts of the income
and expenses incurred
for the ward.
The most important
accounting
responsibility of the
guardian is to file an
annual accounting. This
accounting must set
forth a detailed
accounting of how the
ward’s assets have been
bought, sold, invested,
and spent on behalf of
the ward during the
previous year. If the
ward is mentally
incapacitated, the report
must contain a doctor’s
report detailing the
ward’s current mental
and physical conditions
and whether a
guardianship is still
required. In addition,
the report must contain a
plan detailing the
medical treatment and
personal care received
by the incapacitated
ward in the previous
year and an outline of
the plan for the ward’s
medical and personal
care for the next year. Investment and
management of the
minor’s assets are also
an important duty of the
guardian. The guardian
is responsible for
deciding where the
minor’s liquid assets
will be held and who
will be responsible for
overseeing the
investments. If the
minor owns any real
estate, the guardian is
responsible for paying
all of the bills for
maintaining the property
such as taxes, mortgages
and insurance.
The guardian is also
vested with the duty of
preparing and filing
income tax returns on
behalf of the ward.
Because the
guardianship assets will
need to be invested to
produce income
sufficient to take care of
the minor’s needs, in
most cases the guardian
will need to prepare and
file a yearly income tax
return on behalf of the
minor and pay any taxes
that may be due. Many of the duties and
responsibilities of the
guardian can be carried
out only after asking for
court approval. This
however depends on the
laws of the state where
the guardianship has
been established.
G UARDIAN C OMPENSATION
A guardian provides for
the personal care and
well-being of the ward
and has rights and
responsibilities much
like those of a parent for
a child. When appointed
by the court, a guardian
makes decisions for the
ward to ensure that the
ward’s medical, social
and emotional needs are
met.
Generally, a guardian is
entitled to reasonable
compensation. When
appointed as guardians
family members often
serves without
compensation. On the
other hand, a
professional guardian is
not related by blood or
marriage to the ward and
receives financial
compensation to carry
out the statutory
responsibilities given by
the court. In all cases,
the guardian is legally
entitled to reasonable
compensation for the
services performed.
What is reasonable
compensation depends
on the types of service
being provided and the
skill of the guardian.
The court will review
the compensation paid to
the guardian in the
annual account filed by
the guardian.
A guardian is entitled to
reimburse the out-of-
pocket expenses. In
order to establish the
reasonable out-of-pocket
expenses good record
keeping is essential.
A guardian is generally
paid an amount which is
not more than five
percent of the ward’s
yearly income. The
amount may vary
slightly, but in no case
should the guardian’s
compensation be fixed at
less than fifty dollars for
a year. If the guardian
performs extraordinary
services, s/he may file a
petition before the court
pointing out such
extraordinary services.
In such cases, the court
may, after notice to
interested parties and
hearing thereon,
authorize reasonable
additional
compensation. Such
additional compensation
shall be payable from
the estate of the ward. L IABILITY OF A G UARDIAN
A guardian has to use
reasonable care and
caution when making
decisions and doing
things on behalf of the
ward. However, the
guardian is generally not
personally liable for any
of the actions taken on
behalf of the ward. In
addition, the guardian is
not liable for managing
the ward’s estate if the
guardian has acted like
as prudent person would
in dealing with the
property of another.
However, the guardian
may be held liable for
his/her actions where the
ward’s property is
damaged due to the
careless acts of the
guardian or if the
guardian is personally at
fault.
In some cases, the court
will require a bond from
the guardian to protect
the ward financially.
The bond is paid for by
the ward’s estate and it
protects the ward in the
event the guardian’s
mistake causes the estate
to lose money. The
amount of the bond is
generally fixed at the
total value of the estate
property over which the
guardian has
unsupervised control,
plus one year’s
estimated income. If the guardian enters
into a contract which
s/he has authority to
enter into on behalf of
the ward, the guardian is
generally not personally
liable on it. However,
the guardian is
personally liable on the
contract if the contract
so specifies.
The guardian is
generally not liable for
his/her acts if s/he acts
on behalf of the ward in
a representative
capacity. In addition,
the guardian does not
assume personal
responsibility for the
ward’s debts which may
have been incurred by
the ward prior to the
court’s determinations
that he or she is an
incapacitated or disabled
person. However,
unauthorized use of the
ward’s estate or
misappropriation of the
ward’s property by the
guardian will result in
revocation of legal
authority as guardian by
the court and may result
in personal liability by
the guardian for any
harm or loss suffered by
the estate.
A guardian should
therefore understand the
responsibilities, use
common sense and
exercise sound judgment
to prevent problems. A
guardian is not required
to have any special
skills. However, if the
guardian has special
skills, s/he must use
those skills to manage
the ward’s estate. There
are certain
circumstances under
which the guardian is
personally liable for a
debt of the ward. These
include cases where-
(1) The guardian or
conservator agrees to be
personally responsible
for the debt.
(2) The debt was
incurred for the support
of the ward and the
guardian is liable for
that debt because of
another legal
relationship that gives
rise to or results in a
duty of support relative
to the ward.
(3) The negligence of
the guardian or
conservator gave rise to
or resulted in the debt.
(4) The act of the
guardian was beyond the
guardian’s authority and
this gave rise to or
resulted in the debt. In short, a guardian is
not individually liable
for the actions of the
protected person unless
the guardian is
personally negligent.
Also, a guardian is not
required to expend
his/her own funds on
behalf of a protected
person. However, a
guardian may be held
liable if they have failed
in taking reasonable
steps to assure that the
protected person
receives proper care and
services, or the guardian
has improperly managed
the protected person’s
property or finances.
A CTIONS B ETWEEN W ARD
AND G UARDIAN
Guardians are allowed
reasonable
compensation for their
services. A debt owed
by the guardian to the
estate of the ward will
be treated by the court as
belonging to the estate
of ward. A release of
the guardian by the ward
will be set aside if there
is any element of
unfairness or undue
advantage taken by the
guardian. When a minor
ward attains the age of
majority or dies, or an
incapacitated ward
regains the ability to
manage his/her affairs,
the guardianship does not automatically
terminate. The guardian
must file a final return
and petition the court to
be dismissed as
guardian. The final
return and petition for
dismissal will show that
the guardian has
completed his/her
service in full
compliance with the law
and has turned over all
remaining property to
the ward or to the
personal representative
of the estate of the
deceased ward.
However, the guardian
of a ward who dies
intestate becomes the
administrator of the
estate by right of office.
S/he must conclude the
affairs of the estate
before being dismissed,
unless a personal
representative for the
decedent’s estate is
appointed by the court.
Guardians do not have
authority to sell or
mortgage any property
of the ward without
authority from the court.
The authority is sought
by the filing of an
application for leave to
sell or encumber,
describing the property
to be sold or
encumbered, the interest
of the ward in the
property and the type of
sale or encumbrance
proposed.
Guardians are allowed to
recover and reimburse
themselves for expenses
incurred in connection
with their services as
guardians. Guardians
are also entitled to
certain commissions
received from the ward’s
guardianship estate as
compensation for the
guardian’s service.
However, reimbursable
expenses do not include
expenses incurred by a
guardian in carrying out
things related to natural
affection. Reimbursable
expenses include
transportation costs, out-
of-town lodging and
meals, and other costs,
losses and expenses
actually incurred by the
guardian. The
commissions payable to
guardians of the
property are computed
in accordance with
allowances set by law.
Guardians who
unreasonably fail or
refuse to file returns
with the court forfeit the
right to commissions for
the year covered by the
return. Moreover,
guardians removed by
the Court for
mismanagement are not
entitled to receive
commissions. A CTIONS B Y OR A GAINST
G UARDIAN
The guardian can sue in
the name of the ward. A
guardian can sue only in
the court in which s/he
was appointed. A
judgment against a
guardian in his/her
representative capacity
binds the estate of the
ward but does not bind
the guardian or the ward
personally.
Ordinarily, a guardian
may require the ward to
work and apply the
earnings towards the
ward’s own support. In
his/her representative
capacity, the guardian
will be liable for
necessaries furnished to
the ward by third parties
when s/he neglects or
refuses to supply the
ward with such
necessaries. The
guardian alone will be
liable when s/he makes a
contract in excess of
his/her authority. A
guardian is liable to
his/her ward for any
damages arising from
any breach of trust or
omission of duty on
his/her part. A guardian
is bound by law to file
proper statements of
his/her accounts at
certain definite times.
Any person aggrieved
by a settlement of a
guardian may come into court and file
exceptions.
If a guardian deals with
the property of the ward
for his/her own
advantage it is a
considered fraud and
will be set aside by the
court without proof of
actual fraud. Moreover,
in the absence of special
statute authorizing
otherwise, a guardian
cannot bind the ward by
any agreement of
compromise without the
permission of the court.
