Legal guardian

A legal guardian is a person who has the legal authority (and the corresponding duty) to care for the personal and property interests of another person, called a ward. Guardians are typically used in three situations: guardianship for an incapacitated senior (due to old age or infirmity), guardianship for a minor, and guardianship for developmentally disabled adults.

Guardianship for incapacitated seniors

A guardianship for an incapacitated senior will typically arise where someone determines that a senior has become unable to care for their own person or property. In some cases, there may be a belief that the senior is being financially exploited or about to be exploited. In other cases, the person may be unable to care for him or herself and is not able to properly engage in the activities of daily living without assistance. There will typically be a precipitating incident that causes a professional, family member, health care worker or clergyman to initiate guardianship proceedings.

In most states, the process will start with a determination whether the alleged incapacitated person is actually incapacitated. There will often be an evidentiary hearing. Only if a finding of incapacity is made will the next step take place: whether a guardian is necessary and, if so, who should the guardian be.^[1] The determination of whether a guardianship is necessary may consider a number of factors, including whether there is a lesser restrictive alternative, such as the use of an already existing power of attorney and health care proxy.^[2] In some cases, a guardianship dispute can become quite contentious, and can result in litigation between a parent and adult children or between different siblings against each other in what is essentially a pre-probate dispute over a parent's wealth. Stopping the guardianship is often pursued in such cases as well.

Guardianship for minors

Legal guardian

Most countries and states have laws that provide that the parents of a minor child are the legal guardians of that child, and that the parents can designate who shall become the child's legal guardian in the event of death, subject to the approval of the court.

Natural guardian

If a parent or legal guardian appoints another person to temporarily be responsible for the child, the person acting in that capacity is called the guardian, or natural guardian of that child.

Guardianship for developmentally disabled adults

Legal guardians may be appointed in guardianship cases for adults (see also conservatorship). For example, parents may start a guardianship action to become the guardians of a developmentally-disabled child when the child reaches the age of majority.

Rules applicable to all guardians

Courts generally have the power to appoint a guardian for an individual in need of special protection. A guardian with responsibility for both the personal well-being and the financial interests of the ward is a general guardian. A person may also be appointed as a special guardian, having limited powers over the interests of the ward. A special guardian may, for example, be given the legal right to determine the disposition of the ward's property without being given any authority over the ward's person.

Depending on the jurisdiction, a legal guardian may be called a "conservator", "custodian", or curator. Many jurisdictions and the Uniform Probate Code distinguish between a "guardian" or "guardian of the person" who is an individual with authority over and fiduciary responsibilities for the physical person of the ward, and a "conservator" or "guardian of the property" of a ward who has authority over and fiduciary responsibilities for significant property (often an inheritance or personal injury settlement) belonging to the ward. Some jurisdictions provide for public guardianship programs serving incapacitated adults or children.^[3]

A guardian is a fiduciary and is held to a very high standard of care in exercising his or her powers. If the ward owns substantial property the guardian may be required to give a surety bond to protect the ward in the event that dishonesty or incompetence on his or her part causes financial loss to the ward.

Guardian ad litem

Family law and dependency courts

Guardians ad litem (GALs) are not the same as 'legal guardians' and are often appointed in under-age-children cases, many times to represent the interests of the minor children. Guardians ad litem may be called, in some U.S. states, Court Appointed Special Advocates (CASA). In New York State, they are known as Attorneys for the Child (AFC). They are the voice of the child and may represent the child in court, with many judges adhering to any recommendation given by a GAL. GALs may assist where a child is removed from a hostile environment and custody given to the relevant state or county family services agency, and in those cases assists in the protection of the minor child.

Qualifications vary by state, ranging from no experience or qualification, volunteers to social workers to attorneys to others. The GAL's only job is to represent the minor children's best interest and advise the court. A guardian ad litem is an officer of the court, does not represent the parties in the suit, and often enjoys quasi-judicial immunity from any action from the parties involved in a particular case. Training, qualifications and supervision vary from state-to-state, which means that their quality is similarly variable. In, for instance, North Carolina, an applicant (volunteer) must go through a background check, complete 30 hours of training, and then is assigned a mentor for their first case.

Although a guardian ad litem working through a CASA program volunteers their services, some guardians ad litem are paid for their services. They must submit detailed time and expense reports to the court for approval. Their fees are taxed as costs in the case. Courts may order all parties to share in the cost, or the court may order a particular party to pay the fees.

Guardians ad litem are also appointed in cases where there has been an allegation of child abuse, child neglect, PINS, juvenile delinquency, or dependency. In these situations, the guardian ad litem is charged to represent the best interests of the minor child which can differ from the position of the state or government agency as well as the interest of the parent or guardian. These guardians ad litem vary by jurisdiction and can be volunteer advocates or attorneys. For example, in North Carolina, trained GAL volunteers are paired with attorney advocates to advocate for the best interest of abused and neglected children. The program defines a child's best interest as a safe, permanent home.^[4]

Mental health and probate courts

Guardians ad litem can be appointed by the court to represent the interests of mentally ill or disabled persons. The Code of Virginia requires that the court appoint a "discreet and competent attorney-at-law" or "some other discreet and proper person" to serve as guardian ad litem to protect the interests of a person under a disability.^[5]

Estates and financial decision making

Guardians ad litem are sometimes appointed in probate matters to represent the interests of unknown or unlocated heirs to an estate.

Settlement guardians ad litem

When a settlement is reached in personal injury or medical malpractice case involving claims brought on behalf of a minor or incapacitated plaintiff, courts normally appoint a guardian ad litem to review the terms of the settlement and ensure it is fair and in the best interests of the claimant. The settlement guardian ad litem thoroughly investigates the case, to determine whether the settlement amount is fair and reasonable.^[6]

Situation in other countries

England and Wales

Guardians ad litem are employed by Children and Family Court Advisory and Support Service (CAFCASS), a non-departmental public body, to represent the interests of children in cases where the child's wishes differ from those of either parent, known as a Section 9.5 case. The posts are filled by senior social workers with experience in family law proceedings.

Germany

The German guardianship law was completely changed in 1990. Guardianship (Vormundschaft) was renamed 'care-giving' (Betreuung). When a person of full age who, as a result of mental disease or physical, mental or psychological handicap is incapable of managing his own affairs, a guardian can be appointed (article 1896, German Civil Code). An adult guardian is responsible for personal and estate matters, as well as for medical treatment. However, the ward has normally full capacity with all human rights such as those to marry, vote or make a will. The ward's legal capacity can be lost as a result of a court judgment or order (art. 1903, German Civ. C.; Einwilligungsvorbehalt). Every guardian has to report annually to the guardianship court (Betreuungsgericht). Professional guardians normally held university degrees in law or social work.

Republic of Ireland

The court-appointed guardian system in the Republic of Ireland was brought into law on the proposal of the noted gay activist and member of Seanad Éireann (the Irish Senate), David Norris. The Children Acts Advisory Board which was set up to advise the ministers of the government on policy development under the Child Care Act 1991 was then abolished in September 2011. Judges are responsible for appointing child guardians and can choose guardians from Barnardo's a children's charitable service or from among the self-employed guardians, who are mostly former social workers who have gone into private business since the legislation.^[7][8]

See also

• Conservatorship
• Custodial account
• Foster care
• Receivership
• Wali (Islamic legal guardian)

References

External links

• National Guardianship Association (USA)
• Texas Family Guardianship Association (USA)
• Mental Capacity Act 2005 (England and Wales)
• National Association to Stop Guardian Abuse (NASGA) United States
• German guardianship law (english translation)