Guardianship

Guardianship is a legal process that transfers decision-making authority over an individual (a ward) deemed incapable of managing his or her personal or financial affairs to another person (the guardian). Guardians may be appointed for both minors and adults.

Modern guardianship has its roots in English common law, a legal system which England then transported to its colonies. Under English common law, the doctrine of parens patriae (parent of the country) allowed the courts to assume control of and appoint guardians for infants (minors) and incompetents (incapacitated adults). While the details and terminology vary, guardianship is found not only in the United Kingdom, but also in the United States, Canada, and Australia. In addition, guardianship has been adopted in other countries, such as Japan, whose legal systems are not generally based on the law of England.

In the United States today, state law controls the appointment of guardians, and guardians are appointed by state courts. Because each state is free to enact its own laws, state guardianship laws vary, even on basic terminology. Under the Uniform Guardianship and Protective Proceedings Act, a model act in effect in about one-third of the states, a guardian makes personal-care decisions, while a conservator manages property. But in many other states, the court-appointed manager is referred to as either a guardian of the person or a guardian of the property.

States also vary on procedures for the appointment of guardians. Procedures for appointment of a guardian of a minor are different from and generally less detailed than procedures for an adult appointment. Procedures for minors are less detailed because the incapacity of a minor is presumed, while the incapacity of an adult must be proved.

There are numerous alternatives to guardianship, although many relate only to adults and not to minors. Advising individuals on these alternatives is a major function for professionals such as attorneys and social workers, who counsel individuals on planning for possible incapacity.

Types of Guardianship

There are several types of guardianship. Under a plenary or full guardianship, the guardian is granted comprehensive decision-making authority over an individual's personal care, property, or both. Under a limited guardianship, as its name implies, the guardian is granted only limited and specified powers regarding an individual's personal care or property.

A guardian of the person makes decisions with respect to the ward's personal care. The guardian ordinarily will determine where the ward will live and will arrange for the ward's medical care. The guardian of the property manages the ward's finances. The guardian will disburse funds for the ward's care, will handle the ward's investments, and will determine which assets must be sold.

Guardians are typically appointed for an extended period—until a minor attains the age of majority, or until an adult individual's death or recovery of capacity. Under a temporary or emergency guardianship, however, the guardianship lasts for only a short period of days or months. Because temporary or emergency guardians are appointed for only a short term and often on an emergency basis, the procedures for appointment are usually simpler and more expedited than for a regular, longer-term appointment. Limited and temporary or emergency guardianships are the exception, not the rule, however. The term guardianship, without qualification, usually refers to a plenary or full guardianship.

Guardianship, which requires a proceeding before a court before an appointment may be made, must be distinguished from other uses of the term. It is sometimes said that parents, by virtue of their custodial rights, are the natural guardians of their minor children, although this term is falling into disuse. Also, the role of a guardian is very different from that of a guardian ad litem. A guardian ad litem is an individual, usually an attorney, appointed for the sole purpose of representing another person in a particular court proceeding, such as in a dispute over the validity of a will.

Guardianship of Minors

Minors have neither the legal right to manage property nor to make many major life decisions, such as to determine their place of residence or to decide what school they will attend. For most minors, this lack of legal capacity is not an issue; most do not own significant assets. Also, until a minor reaches the age of majority (age eighteen in most states), marries, or is otherwise emancipated, a minor's parents are legally responsible for the minor's custody and care.

Guardianship of a minor's property becomes an issue if the minor acquires significant assets, due to an inheritance or personal injury settlement, for example. A minor's parents do not have the legal right to manage their child's property. For them to do so, they must be appointed as the minor's guardians by a court.

Guardianship of a minor's person becomes an issue whenever there is need for someone other than the parents to assume the child's custody. Guardians must be appointed following the death of both parents unless an adoption can be arranged. This guardian will usually be a close family member. Guardians are appointed following termination of the parents' parental rights, which may occur due to a finding of abuse or other unfitness. Termination of parental rights permanently severs the parent-child relationship, including the parents' right to the child's custody.

Guardians sometimes are appointed with the consent of the parents. Many states authorize the appointment of standby guardians. Standby guardians are appointed for parents with progressive and disabling conditions, such as AIDS, that are likely to render them incapable of caring for their children. The court appoints the guardian while the parent still has capacity. The guardian then stands by, taking office only when the parent's incapacity is certified. Consent guardianships are also frequently used when a child lives with a grandparent or other relative. For example, appointment of the family member as guardian may be necessary to qualify the child for public school attendance.

Guardianship is a concern of many parents with minor children. They are concerned about who will take custody of their children in the event of their deaths. They are also concerned about how property the children may inherit from them will be managed. Many of these concerns can be addressed in the parents' wills. Although wills are primarily directed at the disposition of property after death, they may also be used to nominate guardians for minor children, both for the minor's care and for management of the minor's property. In some states a parental nominee has an automatic right to be appointed guardian upon the parents' death. In other states, a court must approve the parents' choice, although this approval is usually automatic. Also, in many states a parental nomination is ineffective if a minor age fourteen or older objects. In those states, a minor age fourteen or older has the right to nominate his or her own guardian.

Although parents may nominate guardians to manage the minor's property, guardianship of a minor's property may not be the preferred option. Guardianship of a minor's property terminates when the minor reaches the age of majority, an age at which many parents believe the young adult does not yet have sufficient maturity to manage significant wealth. Creation of a trust is a commonly selected alternative. Under this legal device, which is usually done under the parents' wills, a trustee is named to manage property that would otherwise be placed under guardianship. The responsibilities of the trustee are specified in the will or other trust document. The major advantages of a trust over a guardianship are that court proceedings are avoided, and the parents may designate any age for distribution of the assets to the child.

Guardianship sometimes becomes an issue among divorcing parents. Although custody of children is normally determined by the court granting the divorce, parents or other relatives will sometimes attempt to upset this custody order by moving the child to a different jurisdiction and securing appointment as the child's guardian from a court in the new state. Federal law and international treaties seek to limit the abduction of children to different states or countries and the use of guardianship to facilitate that process.

Guardianship of Adults

Appointment of a guardian for an adult is very different from appointment of a guardian for a minor. A minor, by legal definition, lacks the capacity to manage his or her own personal or financial affairs. An adult, however, is presumed to have such capacity. Before a guardian may be appointed for an adult, it must be established to a court's satisfaction that the adult individual lacks capacity to make his or her own decisions. The procedures for the appointment of a guardian of an adult are therefore more detailed than the procedures for a minor's appointment.

Guardianship of adults is an issue of growing importance, a shift explained by changing demographics. Approximately 80 percent of adult guardianship appointments are made for individuals age sixty or older. This segment of the population is rapidly increasing. In 1987, there were 29.8 million Americans age sixty-five or older. By the year 2020, the number is projected to exceed 52 million. Guardians are also frequently appointed for individuals with developmental disabilities and individuals with serious mental illnesses.

Guardians may be appointed only for adults who are determined to lack capacity. Capacity is a legal standard, not a clinical one. Professionals such as physicians, psychologists, and social workers may be asked to provide evidence concerning the individual's medical condition and ability to perform certain tasks, but the determination of whether an individual lacks legal capacity to make his or her own decisions must be made by a court.

The definition of incapacity was traditionally based on a categorical approach: Did the individual have a specified impairment such as mental deficiency, mental retardation, or infirmity of advanced age? In most states, however, the definitions have moved away from such labels and conclusory statements. The growing trend is to focus on the individual's ability to make decisions with respect to self-care and management of property. If the individual is unable to make such decisions, then a guardian may be appointed if the individual's needs cannot be met by any less restrictive means.

Guardianship of an adult is initiated by filing a written petition with a court, requesting that a guardian be appointed. The petition may request the appointment of a guardian of the person, a guardian of the property, or both. The same person may be appointed as guardian of the person and guardian of the property, or different persons may be appointed. The individual for whom guardianship is sought (the respondent) must be given notice of the petition and has the right to contest the requested appointment. In many states an attorney must be appointed to represent the respondent. The court may also appoint a visitor to make an independent investigation on whether guardianship is appropriate or order that the respondent be examined by a physician, psychologist, or other qualified professional.

The procedure for appointment of a guardian concludes with a formal hearing before a court. At the hearing, the judge considers the evidence and either makes the appointment, rejects the appointment, or orders that the respondent's needs be met by other means. In some states the respondent may request that this determination by made by a jury. As with minors, the guardian will usually be a close family member. Before making the selection, however, the court will generally consider the ward's preferences.

The role of the appointed guardian has traditionally been to act in the ward's best interests. Under this model, the guardian must make an objective determination of what is best for the ward and act accordingly. Whether this determination conflicts with the ward's current or prior expressed wishes is not a factor in this situation.

However, other approaches have become increasingly important. Under the least restrictive alternative model, the guardian may exercise authority only to the extent necessitated by the ward's limitations. The guardian must select the alternative least restrictive of the ward's independence and freedom. The guardian must also encourage the ward to participate in making decisions. A third approach is the substituted judgment model. The guardian must make the decision that the ward would have made had the ward still had capacity. Under this approach, the ward's prior expressed wishes and personal values are important factors to be considered.

Many adult guardianships continue for the ward's lifetime and are terminated only by death. Upon the ward's death, the court will discharge the guardian, and the ward's assets will be distributed under the ward's will or to the ward's heirs. Guardianships are not necessarily lifelong, however. The ward may recover capacity, in whole or in part, or other changed circumstances may suggest that guardianship is no longer needed. In all states, a ward may request termination of the guardianship. To protect this right, many states provide that the ward's request need not be made by a formal petition but may be made by informal letter.

The decision to seek guardianship of an adult should never be made lightly. The position of guardian is a heavy responsibility. The ward, because he or she has been found to lack legal capacity, may lose many basic rights, including the right to vote, to travel, to decide where to live, to divorce or marry, to keep and care for children, and even to drive a car.

Similar to children, incapacitated adults are sometimes moved to different states or countries with the appointment of a guardian used to confirm residence in the new locale. Sometimes the move is arranged by a child who disagrees with his or her siblings on what care is best for the parent. Compacts among the states and international treaties attempt to limit use of guardianship to cases where a move to another jurisdiction is in the parent's best interests.

Alternatives to Guardianship

There are numerous alternatives to guardianship. Many require prior planning, which should be done well before the individual's capacity becomes an issue. Perhaps the most important of these alternatives is a durable power of attorney. Under a durable power of attorney, an individual designates another as agent to make decisions when or should the individual no longer be able to do so. Durable powers of attorney may be used for property management and for making health and personal-care decisions.

Another planned alternative is a revocable trust, often referred to as a living trust. Under this device an individual transfers his or her assets to a trustee, who holds and administers them as provided in the trust document. Most commonly the individual will act as his or her own trustee until such time as he or she is no longer able to manage the property, at which time a designated successor trustee will assume the responsibility.

Some alternatives do not require prior planning. A representative payee may be named to manage Social Security benefits. Many states have enacted health-care consent statutes allowing family members to make medical decisions for an incapacitated relative. A variety of social services, including assisted living, respite care, and financial counseling may be available to lessen an individual's need to have someone else make decisions. Before initiating the detailed procedure required to secure appointment of a guardian, all alternatives should be explored.

See also:Child Custody; Family Law; Grandparents' Rights

Bibliography

anderer, s. j. (1990). determining competency inguardianship proceedings. washington, dc: american bar association.

commission on the mentally disabled/commission onlegal problems of the elderly. (1989). guardianship: an agenda for reform. washington, dc: american bar association.

daniel, c., and hannaford, p. (1999). "creating theportable guardianship: legal and practical implications of probate court cooperation in interstate guardianship cases." quinnipiac probate law journal 13:351–377.

english, d. (1995). "minors' guardianship in an age ofmultiple marriage." university of miami institute on estate planning 29:5–1 to 5–26.

english, d. and morgan, r. (1998). "the uniformguardianship and protective proceedings act (1997)." naela quarterly 11:3–15.

frolik, l. (1981). "plenary guardianship: an analysis, acritique, and a proposal for reform." arizona law review 23:599–660.

frolik, l. (1998). "guardianship reform: when the best is the enemy of the good." stanford law & policy review 9:347–355.

grisso, t. (1986). evaluating competencies: forensic assessments and instruments. new york: plenum press.

johns, a. f., and bowers, v. (1997). "guardianship folly:the misgovernment of parens patriae and the forecast of its crumbling linkage to unprotected older americans in the twenty-first century-a march of folly? or just a mask of virtual reality?" stetson law review 27:1–90.

krasik, m. k. (1989). "the lights of science and experience: historical perspectives on legal attitudes toward the role of medical expertise in guardianship of the elderly." american journal of legal history 33:201–240.

parry, j. (1985). "incompetency, guardianship, andrestoration." in the mentally disabled and the law, ed. s. j brakel, j. parry, and b. a. weiner. chicago: the american bar foundation.

symposium issue (2000). "celebrating twenty years: thepast and promise of the 1980 hague convention on the civil aspects of international child abduction." new york university journal international law & politics 22:1–377.

tor, p., and sales, b. (1994). "a social science perspective on the law of guardianship: directions for improving the process and practice." law and psychology review 18:141.

u.s. senate committee on aging. (1988). aging america:trends and projections. washington, dc: u.s. department of health and human services.

david m.english

GUARDIANSHIP

Ordinarily the person who will be most directly affected by any particular decision about health care, finances, social services, residential issues, or other personal matters is the person who gets to make that decision. There may be times, however, when that individual is not capable of making and expressing difficult personal choices. In those instances, the legal system may need to intervene on behalf of the incapacitated individual. This may be accomplished through a variety of legal devices that vary in terms of their invasiveness into personal autonomy. One of these legal devices is guardianship.

Incapacity to make and express valid decisions is a problem that affects older persons in disproportionate terms. The extent of mental disorders in old age, representing decrements in both intellectual and emotional functioning, is considerable. For some older persons, mental dysfunction may be a carryover from earlier life. For most of the elderly, though, mental health problems develop later in life as a result of organic brain disorders (primary degenerative disorders or multi-infarct dementia), paranoid disorders, drug reactions, excessive use of alcohol, or as the by-product of various physical illnesses. These problems may take the form of cognitive impairment (dementia) in memory, attention, or information processing; emotional lability (psychosis) often manifested as aggression; or pseudodementia (depression). Because of this prevalence of impairment, guardianship is a legal device that disproportionately affects older persons, especially those residing in institutions.

Court-appointed surrogates

Every state has enacted statutes that empower the courts to appoint a surrogate with the authority to make decisions on behalf of a mentally incompetent ward. The terminology for the court-appointed surrogate decision-maker varies among jurisdictions; "guardian" is the most commonly used term, although "conservator" and other terms are employed in some places.

Guardianship statutes are an example of the state's inherent parens patriae power to protect those who cannot take care of themselves in a manner that society believes is appropriate. The origins of some form of guardianship based on the state's benevolence toward the dependent stretch back beyond thirteenth-century England.

The terms "capable" or "having capacity" usually are used to describe individuals who, in a health care clinician's professional judgment, have sufficient capacity to make their own choices. The terms "incompetent" or "incompetence" refer to a court's formal ruling on the decision-making status of an individual in the context of an official guardianship proceeding, although some modern guardianship statutes use the term "capable" to refer to a judicial judgment.

Every adult person is presumed to be legally competent to make personal decisions in life. This presumption may be overcome, and a surrogate decision-maker may be appointed, only on a sufficient showing that the individual is mentally unable to participate authentically (i.e., consistent with previously held values) and self-sufficiently in a rational decision-making process.

State guardianship statutes contain a two-step definition of competence. First, the individual must fall within a particular category such as old age, mentally ill, or developmentally disabled. Second, the individual must be found to be impaired functionally—that is, actually unable to care appropriately for person or property—as a result of being within that category. The requirement of functional impairment is emphasized in those states, such as California, whose statutes restrict eligibility for guardianship to those who are "gravely disabled" or the equivalent.

In disputed, adversarial guardianship proceedings, medical and psychological experts usually are called on to testify by each side about the proposed ward's categorical problem and its impact on the proposed ward's functional abilities. In practice, this medical and psychological testimony frequently becomes the primary, if not the sole, basis for adjudicating incompetence.

A court appoints a guardian (referred to in a few jurisdictions as a conservator or committee) as substitute decision-maker for an incompetent person. The incompetent person for whom a guardian is appointed is a "ward," and the relationship created between the guardian/ conservator and ward is called "guardianship" or "conservatorship."

Procedural protections

There has been a strong movement since the late 1980s toward greatly strengthening the procedural protections available to prospective wards. In response to widespread public advocacy of greater autonomy and dignity for older persons and sharp criticism of the guardianship system as overly intrusive and paternalistic, most U.S. jurisdictions have adopted extensive revisions to their guardianship statutes. These statutory reforms create or enhance requirements concerning court-appointed legal counsel with adversarial duties, notice to the proposed ward, a hearing, personal attendance of the proposed ward at the hearing, clearly defined standard of proof (varying among states from a preponderance of the evidence test to a higher standard of clear and convincing evidence to the strictest test of beyond a reasonable doubt), explicitly delineated contents of the guardianship petition, and more specificity in the court order finding the ward incompetent and appointing the guardian. In a majority of states, statutes allow for the relaxation of normal procedural requirements to permit the appointment of a temporary or emergency guardian when there is an immediate life-threatening situation or when a permanent guardian can no longer serve.

The guardian who is appointed ordinarily is a private person (relative, friend, or attorney) or institution (bank or trust company); the majority of guardians are relatives of the ward. Many state statutes establish procedures through which competent adults are empowered to nominate in advance the person they wish to serve as guardian for them in the event that guardianship is ordered at some future time, and the courts are required to give strong deference to these preferences.

In a growing number of cases, older individuals are left without any friends or family members who are willing and able to act as a surrogate decision-maker. In response to this significant social phenomenon, some states have devised "public guardianship" systems under which a government agency, acting either directly or through contract with a private not-for-profit or for-profit organization, functions in the guardian role for a ward who has no one else. Elsewhere, some private corporations and organizations offer their services as guardians directly to the courts, either for a fee or on a voluntary, pro bono basis.

Guardian's powers

A court may confer different types of powers on a guardian. Plenary power is complete authority over the ward's person and estate, encompassing virtually every element of the ward's life, including health care and residential choices. Alternatively, guardianship powers may be restricted to control of the ward's estate. In the latter event, the guardian of the estate may make decisions only about the handling of the ward's financial assets—real and personal property—and income. A court may also appoint a guardian ad litem who has authority to represent the ward just in a particular legal proceeding, such as a petition for authority to terminate life-sustaining medical intervention.

Courts and legislatures traditionally have treated mental competence as an all-or-nothing concept, even though an older person's functional capacity may wax and wane from time to time and vary widely depending on the kind of choice facing the individual and various environmental factors. In recognition of this reality, all states now allow courts to grant "limited" or "partial" guardianship explicitly delineating the particular, limited types of decisions that the ward is incapable of making and over which the guardian may exercise surrogate authority, with all remaining power residing with the ward. This approach is driven by the constitutional principle that, when the state absolutely must intervene in the life of a person without that person's voluntary permission, the state should engage in the least restrictive or intrusive alternative possible, consistent with accomplishing the state's legitimate goals. Limited or partial guardianship statutes may be permissive, allowing but not requiring courts to carefully tailor the guardian's powers to the ward's needs, or they may mandate that the guardian's powers be drawn as narrowly as possible by the appointing judge.

Any ward, but especially one for whom a plenary guardian has been appointed, inevitably suffers a serious deprivation of decision-making authority. Among numerous kinds of choices taken away, a ward may lose the right to enter into a binding contract, to vote, to hold public office, to marry or divorce, to hold a license (such as a motor vehicle driver's license), to execute a will, to own and sell or give away real and personal property, and to sue and be sued in the courts.

Once a guardianship has been imposed, the appointed guardian is expected to act in a fiduciary, or trust, manner. This responsibility may be fulfilled by performing in a way that is either (1) in accordance with the guardian's judgment of the ward's best interests or (2) consistent with previously expressed or implied values and preferences of the ward. The latter approach is called substituted judgment, which is now preferred by most legislatures and courts as most respectful of the ward's own life experiences and deeply held principles. The court retains continuing jurisdiction or power to oversee the guardian's conduct.

Any guardianship may be discontinued when it is no longer needed, and in some states appropriateness must be reviewed at least annually. The successful termination of a guardianship is difficult, because the party arguing for termination bears the burden of proving that competence has been restored.

Marshall B. Kapp

See also Advance Directives for Health Care; Autonomy; Competency.

BIBLIOGRAPHY

Frolik, L. A., and Kaplan, R. L. Elder Law in a Nutshell, 2d ed. St. Paul, Minn.: West Group, 1998.

Kapp, M. B. Geriatrics and the Law: Understanding Patient Rights and Professional Responsibilities, 3d ed. New York: Springer Pub. Co., 1999.

Schmidt, W. C., JR. Guardianship: The Court of Last Resort for the Elderly and Disabled. Durham, N.C.: Carolina Academic Press, 1995.

Smyer, M.; Schaie, K. W.; and Kapp, M. B., eds. Older Adults' Decision-Making and the Law. New York: Springer Pub. Co., 1995.

Strauss, P. J., and Lederman, N. M. The Elder Law Handbook. New York: Facts on File, Inc., 1996.

Zimny, G. H., and Grossberg, G. T., eds. Guardianship of the Elderly: Psychiatric and Judicial Aspects. New York: Springer Pub. Co., 1998.

Guardianship

Sections within this essay:

Background

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.

Guardianship of Minors

The guardianship of a minor can be over the actual minor (or what is commonly referred to as the minor's person), the property (or estate) of the minor, or both. Preferred guardians for a minor are parents and then other relatives. However, the primary consideration in selecting a guardian is the best interests of the minor. If the parents are still alive, before a nonparent is chosen as a guardian, the parents must be determined to be unable or unfit to look after the best interests of the minor. When minors are removed from the care and supervision of their parents, and adoption is either not forthcoming or not a viable option, guardianship is considered a reasonable alternative.

Even after a guardian is chosen for a minor, most state statutes allow that at age fourteen (or other reasonable age), the minor may select or at least voice a preference, concerning who will be selected to serve a guardian.

The guardian of a minor looks after the direct physical well-being of the minor and the assets of the minor's estate. A guardian is also necessary to provide a legal residence in order for the ward to attend a public school; to apply for public assistance benefits for a minor if needed; to apply for public housing on behalf of a minor where necessary; and to bring a lawsuit on behalf of the minor. The guardian also receives and maintains any money due the minor for his or her care or support. The guardian is required to maintain, account for, and preserve any excess funds beyond what is necessary to support the minor. The guardian has a duty to look after the minor's personal property and assure the proper education of the ward. The guardian is also required to authorize any necessary medical or other care for the well-being and health of the ward. Generally, the guardian provides whatever care would be given to a child by its parents.

When a guardianship of a minor is instituted because of the age of the ward, the guardianship may be terminated when the minor reaches the age of majority. The guardianship may be reinstated by the court after the ward reaches the age of majority where it can be shown that the ward still requires supervision. Guardianship may be terminated if the ward marries. Guardianship is automatically terminated at the death of the ward. In addition, the guardianship may be terminated, and a new guardian appointed, when it can be shown that the guardian did not adequately perform his or her duties to the ward.

Testamentary Guardianship

Generally, parents may, in a properly drafted will, appoint or indicate their preference for a guardian for a minor child or an adult child with a disability who requires supervision over his or her person or estate. Courts will then make a determination as to the availability or appropriateness of the parents' selection.

Temporary Guardianship

Some state statutes provide for temporary or limited guardianships. These 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.

Also, emergency guardianships have been granted. In these situations, an emergency situation exists and someone is needed to give approval in order for the person to receive emergency services. A temporary guardian is appointed by the court to serve during the existence of the emergency situation. Generally, the person being served by the temporary guardian is disabled or incapacitated in some way. The court must determine that the person being served by the guardian is unable to make the emergency decision because of mental disability, addiction, debilitating disease, or some other similar limitation. The court must also determine that if a guardian is not appointed, the person is at risk of serious harm or even death. Finally, the court must determine that there is no other person available who can make the emergency determination for the incapacitated person.

The order for emergency guardianship is generally granted for a short period of time which is sufficient to allow the situation to be handled properly. After the emergency situation has ended or subsided, the temporary guardian must file a report with the court detailing the nature of the services rendered by the guardian and describing the outcome of the situation.

Guardianship of Persons who are Mentally or Physically Incapacitated or Disabled

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.

Removal of Guardian

A guardian may be removed if a court determines that the ward no longer needs the services of the guardian. Also, a guardian may be removed when he or she has not provided adequate care for the ward or when it is determined that the guardian is guilty of neglect. Neglect can include using the ward's money or property for the guardian's own benefit and not obeying court orders. Upon court order, the guardian will be removed and a new guardian (or temporary guardian) will be substituted in place of the original guardian.

Examination of Certain State Provisions on Guardianship

FLORIDA: The statute on guardianships for incapacitated persons requires that the court find the "least restrictive form of guardianship to assist persons who are only partially incapable of caring for their needs." The statute also confirms the legislative intent that incapacitated persons function and live as independently as possible, managing their finances and developing their potential for self-sufficiency. To that end, they will be encouraged to develop their living skills to the extent that they may, for example, be able to marry, vote, travel, sign contracts, complete their educational objectives, and apply for a driver's license.

MASSACHUSETTS: Regarding the guardian of a minor, the statute states that the court will choose the guardian for any minor under the age of fourteen. A minor over the age of fourteen may suggest his or her own guardian and the court will try to honor that request. If the court does not find the guardian desired by the minor to be appropriate, then the court will appoint another guardian. Regarding the care of a mentally ill person by a guardian, the statute declares that a guardian will not have the authority to commit the ward to a mental institution or agree to the administering of "antipsychotic medication" unless the court first finds that such an action is in the "best interests" of the ward and then authorizes such a commitment or treatment. Regarding testamentary guardians, the statute allows parents to appoint such a guardian on behalf of a minor child, even if the child is not born at the time the testamentary instrument is drafted. Such a testamentary guardian will have the same powers and duties as one appointed by the court.

NEW HAMPSHIRE: Regarding the duties of a guardian for a minor, the guardian will "protect and preserve" the personal and real property assets of the minor and any income the comes from rents, income, or the sale of such property. The guardian is also given the authority, with the courts approval, to open a trust to which the minor's assets can be transferred. This trust would end no later than the ward's twenty-fifth birthday.

SOUTH CAROLINA: Regarding persons with disabilities, the spouse (if the incapacitated person is married) or parents of an incapacitated person may make a testamentary appointment of a guardian for the incapacitated person in their will. Such an appointment by a spouse or parent becomes effective if, after the incapacitated person and the person giving him or her care or the "nearest adult relative" has received twenty days written notice and "the guardian files acceptance of appointment in the court." When both a spouse and a parent appoint guardians in their wills, the appointment of the spouse has priority.

Additional Resources

Corpus Juris Secundum Volume 39, West Publishing, 1976.

Guardianship Manual (Chapter Five) The Maryland Institute for Continuing Professional Education of Lawyers, Inc., 1999.

Michigan Guardianship and Conservatorship Handbook Institute of Continuing Legal Education, 2000.

"Permanency Outcomes in Legal Guardianships of Abused/Neglected Children". Henry, Jim "Families in Society: The Journal of Contemporary Human Services" 80 (1999): 561.

Representing the Child Client. New York: Lexis Publishing, 2001.

Organizations

California Coalition for Youth (CCY)

1220 H Street, Ste, 103
Sacramento, CA 95814 USA
Phone: (916) 340-0505
URL: http://www.ccyfc.org/
Primary Contact: Cheryl Zando, Board Chair (Youth)

Citizens for Better Care (CBC)

4750 Woodward Aveneu, Ste,. 410
Detroit, MI 48201 USA
Phone: (800) 833-9548
Fax: (313) 832-7407
URL: http://www.cbcmi.org
Primary Contact: Nida Donar, Executive Director

National Guardianship Association (NGA)

1604 North Country Club Road
Tucson, AZ 85716 USA
Phone: (520) 881-6561
Fax: (520) 325-7925
URL: http://www.guardianship.org/
Primary Contact: Terry W. Hammond, Board Member

310. Guardianship (See also Protectiveness.)

1. Argus hundred-eyed giant guarding Io. [Gk. Myth.: Leach, 72]
2. Argus Panoptes all-seeing herdsman with one hundred eyes. [Gk. Myth.: Walsh Classical, 29]
3. battle ax symbol of wardship. [Western Folklore: Jobes, 163]
4. beefeater popular name for a Yeoman of the Guard or Yeoman Warder of the Tower of London. [Br. Hist.: Payton, 88]
5. Bodhisattva enlightened one deferring Nirvana to help others. [Buddhism: Parrinder, 48]
6. Cardea protects children from witches. [Rom. Myth.: Leach, 191]
7. Cerberus three-headed dog, guards gate to Hades. [Gk. Myth.: Zimmerman, 55]
8. cherubim defended tree of life with flaming swords. [O.T.: Genesis 3:24]
9. cock watchful church-tower sitter. [Christian Symbolism: Appleton, 21]
10. Cybele protector of cities and mother-goddess. [Phrygian Myth.: Avery, 345]
11. Delphyne half-woman, half-beast; guarded Zeus while imprisoned by Typhon. [Gk. Myth.: Howe, 78]
12. Egil giant who watched over Thor’s goats. [Norse Myth.: LLEI, I: 327]
13. Erytheis stood vigil over golden apples of Hesperides. [Gk. Myth.: LLEI, I: 327]
14. eunuch castrated guardian of Eastern harems. [Arab. Culture: Jobes, I, 530–531]
15. Fafnir dragon guarding the Nibelung’s gold. [Ger. Opera: Wagner, Siegfried, Westerman, 240–241]
16. fairy godmother mythical being who guards children from danger and rewards them for good deeds. [Folklore: Misc.]
17. Faithful Eckhardt old man; warns people of death procession on Maundy Thursday. [Ger. Folklore: LLEI, I: 281]
18. Ferohers tutelary angels. [Persian Myth.: LLEI, I: 328]
19. fiery swords brandished by cherubim safeguarding tree of life. [O.T.: Genesis 3:24]
20. Fisher King guardian of the Grail. [Ger. Legend, Parzival ; Arthurian Legend: Walsh Classical, 227]
21. Fylgie guardian spirit assigned to each human for life. [Norse Myth.: LLEI, I : 328]
22. Garm ferocious watchdog at gate of Hell. [Norse Myth.: LLEI, I: 328]
23. guardian angel term for Christian namesake who watches over a young child. [Christianity: Misc.]
24. Heimdall guardian of Bifrost; distinguished for acute vision and hearing. [Norse Myth.: Leach, 488]
25. Ladon hundred-headed dragon; guarded apples of the Hesperides. [Rom. Myth.: Zimmerman, 145]
26. lion sleeps with eyes open. [Christian Symbolism: Appleton, 59]
27. Mahub Ali horse-dealer in charge of Kim. [Br. Lit.: Kim ]
28. Nana gentle old dog; guards the Darling children. [Br. Lit.: Peter Pan ]
29. Palace Guard, the sobriquet for the zealous spokesmen-defenders of the Nixon Administration. [Am. Hist.: The Palace Guard ]
30. palladium a “safeguard”; Troy believed safe while statue of Pallas Athene remained. [Gk. Lit.: Iliad ; Espy, 40]
31. raven guardian of the dead. [Christian Folklore: Mercatante, 159]
32. Swiss Guards papal praetorian guard instituted by Julius II. [Ital. Hist.: Plumb, 218, 254]
33. wyvern protector of treasure and wealth. [Heraldry: Halberts, 40]