Guardianships – Responsibility for Welfare of Another

A guardian is a person appointed by the court to guard the health, safety and welfare of another. A guardian may be appointed for a minor (anyone under the age of 18), or for an incapacitated person. The term “incapacitated person” is defined by law to mean any person who is impaired by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he or she lacks sufficient understanding or capacity to make or communicate responsible decisions concerning himself or herself. The person for whom a guardian is appointed is called the “ward.”

Generally speaking, a guardian has the same powers and authority over a ward that a parent has over a child. The guardian may, for instance, consent to medical treatment and other professional services for the ward. The guardian may also consent to psychiatric and psychological care. When it comes to the property of the ward, however, the guardian has very limited powers. If the ward has property in need of management or protection, a conservator should be appointed. A “conservator” is a person appointed to protect the property of a disabled person.  In some cases, the ward needs both a guardian and a conservator, which may or may not be the same person.

Guardian of a Minor

A parent of a minor may, by last will and testament, appoint a guardian for his or her child. In order for this so-called testamentary appointment to become effective:

1. both parents must be dead; or
2. the surviving parent’s parental rights must have been terminated; or
3. the surviving parent must be incapacitated. Otherwise, the surviving parent will have the care and custody of the child (even if the parents are divorced, and the deceased parent was awarded sole custody).

If the minor child is 14 years of age or older, the child may object to the appointment of the guardian. If the child objects, the court will base the appointment on “the welfare and best interests of the minor.”

The court may appoint a guardian for an unmarried minor if both parents are dead or their rights to custody have been terminated or suspended by circumstances or court order. Any person whose appointment would be in the best interests of the minor may be appointed. In most cases, this likely will be a relative of the minor. If the court appoints a guardian because the parents are unable or unwilling to care for their child, the guardianship may be terminated upon a change of those circumstances.

Guardian of an Incapacitated Person

A guardian for an incapacitated person may be appointed by will or other signed writing of a parent or spouse, or by court order. Most often an appointment is by court order. Court appointment of a guardian for an incapacitated person involves a judicial proceeding.

The appointment of a guardian pursuant to a will or other writing is effective on the death of the appointing parent or spouse, the adjudication of incapacity of the appointing parent or spouse, or a written determination by a physician who has examined the appointing parent or spouse that the appointing parent or spouse is no longer able to care for the incapacitated person, whichever first occurs.

A guardian is eligible to act on the filing of an acceptance of appointment, which must be filed within thirty days after the guardian’s appointment becomes effective.  The guardian must:

1. file the notice of acceptance of appointment and a copy of the will with the court in the county in which the will was or could be probated or, in the case of a signed writing, file the acceptance of appointment and the signed writing with the court in the county in which the incapacitated person resides or is present
2. give written notice of the acceptance of appointment to the appointing parent or spouse, if living, the incapacitated person, a person having care or custody of the incapacitated person other than the appointing parent or spouse, and the adult nearest in kinship.  Unless the appointment was previously confirmed by the court, the notice must include a statement of the right of those notified to terminate the appointment by filing a written objection.

The court will hold a hearing on the issue of incapacity. To protect the rights of the alleged incapacitated person, the court will appoint an attorney to represent the person, an investigator to investigate the allegations concerning the person, and a physician to examine the person. The court will appoint a guardian only if it is satisfied, after considering all the evidence, that the person is incapacitated and in need of a guardian.

The court retains jurisdiction over all guardianship proceedings. The guardian is, thus, accountable to the court for all actions on behalf of the ward, until the guardian’s resignation, removal or termination of appointment.