Legal Guardianship

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. Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or disability. 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 their death.

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. A guardian appointed to represent the interests of a person with respect to a single action in litigation is a guardian ad litem.

Some jurisdictions allow a parent of a child to exercise the authority of a legal guardian without a formal court appointment. In such circumstances the parent acting in that capacity is called the natural guardian of that parent’s child.

Guardian ad litem

Guardians ad litem are often appointed in divorce cases or in parenting time disputes to represent the interests of the minor children. Guardians ad litem are also used in other family matters involving grandparents obtaining custody or grandparenting time as well as protection orders where one parent is attempting to get an order against another party with a legal connection to the child. The kinds of people appointed as a guardian ad litem vary by state, ranging from volunteers to social workers to regular attorneys to others with the appropriate qualifications. The two divorcing parents are usually responsible for paying the fees of the guardian ad litem, even though the guardian ad litem is not responsible to them at all. In some states, the county government pays the fee of that attorney. The guardian ad litem’s only job is to represent the minor children’s best interests.

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.

They are also 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 turns 18. Or, children may need to file a guardianship action for a parent when the parent has failed to prepare a power of attorney and now has dementia.

Guardians ad litem can be appointed by the court to represent the interests of mentally ill or disabled persons.

Estates

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

A guardian is a fiduciary and is held to a very high standard of care in exercising his 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 part causes financial loss to the ward.

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.

Linda Rich is a licensed attorney practicing in the greater Cleveland area with law offices in Euclid and Lakewood. Contact her for assistance with your Legal Guardian or other elder law related issues.

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