Guardianship



Guardianship

Guardianship

Guardianships

A guardianship is a fiduciary relationship by which one person, the guardian, acts for another, the ward, who is regarded as being incapable of managing his or her own affairs. Statutes in every state provide for the appointment of a guardian of a person and the estate of a minor. These statutes also provide for the appointment of a guardian for someone who has been declared by a court to be non compos mentis, i.e., not of sound mind, memory, or understanding. Many states have statutes that provide for the appointment of a conservator for a person, who, because of physical or mental infirmity or age, is unable to handle his/her affairs, but who has not been declared non compos mentis.

In most jurisdictions, the father and mother are joint natural guardians of their minor children, and there is no need for a guardianship unless both parents die before a minor reaches the legal age of majority. The age of majority is the legally defined age at which a person is considered an adult, with all the rights and responsibilities of adulthood. The age of majority is defined by state laws, which vary by state, but is 18 in most states.

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The appointment of a guardian of the person or estate is generally a judicial function, brought about by following the procedure set forth in the statutory law of the particular jurisdiction. While it is normally the practice to combine both guardianships (person and estate) in the same person, one person can be guardian of the ward’s person and another the guardian of the ward’s estate. For example, an adult relative might be appoint the guardian of the “person” of a minor while a financial institution might be appointed as guardian of the minor’s estate.

Many jurisdictions permit one or both parents of a minor to appoint a guardian in their will. Testamentary appointments usually must be approved by the court having jurisdiction over such matters. Approval of a testamentary appointment may be withheld if the court believes that appointment of a different guardian would be in the best interest of the child’s welfare.

Person under guardianship contracts made by a person placed under guardianship by court order are void. Guardians and conservators are per­sons appointed by the Probate Court. The individual for whom they are appointed is called a ward. A guardian is appointed for a ward when the Probate Court determines that one of the following circum­stances exists:

  1. The ward is a minor (less than 18 years old);
  2. The ward is mentally ill, as evi­denced by the opinion of a qual­ified physician.
  3. The ward is mentally retarded, as evidenced by the opinion of a qualified physician;
  4. The ward, because of excessive drinking, gambling and the like, wastes or lessens his estate, commonly called a “spendthrift.”

In each of the foregoing situations, except in the case of minors, it must appear to the Probate Court that the ward is incapacitated to such a degree that he is unable to make informed decisions regarding his per­sonal and financial affairs.

A conservator is appointed for a ward when the Probate Court deter­mines that one of the following cir­cumstances exists:

  1. The ward suffers from mental weakness;
  2. The ward is mentally retarded;
  3. The ward suffers from physical incapacity;

The ward is unable to make or communicate informed deci­sions due to physical incapacity or illness. In each of the foregoing situations, it must appear to the Probate Court that the ward is incapacitated to such a degree that he is unable to make informed decisions regarding his financial affairs.

Guardians and conservators have many duties in common and are subject to supervision of the Probate Court. Some of these duties are set forth below. The list is not complete, but rather is a gen­eral indication of the scope of duties:

  1. Pay the ward’s debts;
  2. Represent the ward in all law­suits;
  3. Control and manage the ward’s property;
  4. Invest the ward’s funds;
  5. Collect funds due the ward;
  6. Support the ward and his family from the ward’s funds;
  7. Sell, lease or mortgage the ward’s property, with the approval of the Probate Court.

A guardian, unlike a normal or usual conservator, has custody of the person of his ward.

Person under Guardianship

If a person is under guardianship by court order, her contracts are void and of no legal effect. A court appoints a guardian, generally under the terms of a statute, to control and preserve the property of a person (the ward or adjudicated incompetent) whose impaired capacity prevents her from managing her own property.

A guardianship is a fiduciary relationship by which one person, the guardian, acts for another, the ward, who is regarded as being incapable of managing his or her own affairs. Statutes in every state provide for the appointment of a guardian of a person and the estate of a minor. These statutes also provide for the appointment of a guardian for someone who has been declared by a court to be non compos mentis, i.e., not of sound mind, memory, or understanding. Many states have statutes that provide for the appointment of a conservator for a person, who, because of physical or mental infirmity or age, is unable to handle his/her affairs, but who has not been declared non compos mentis.

In most jurisdictions, the father and mother are joint natural guardians of their minor children, and there is no need for a guardianship unless both parents die before a minor reaches the legal age of majority. The age of majority is the legally defined age at which a person is considered an adult, with all the rights and responsibilities of adulthood. The age of majority is defined by state laws, which vary by state, but is 18 in most states.

The appointment of a guardian of the person or estate is generally a judicial function, brought about by following the procedure set forth in the statutory law of the particular jurisdiction. While it is normally the practice to combine both guardianships (person and estate) in the same person, one person can be guardian of the ward’s person and another the guardian of the ward’s estate. For example, an adult relative might be appoint the guardian of the “person” of a minor while a financial institution might be appointed as guardian of the minor’s estate.

Many jurisdictions permit one or both parents of a minor to appoint a guardian in their will. Testamentary appointments usually must be approved by the court having jurisdiction over such matters. Approval of a testamentary appointment may be withheld if the court believes that appointment of a different guardian would be in the best interest of the child’s welfare.