Guardianship

Guardianship is the process by which one individual (a legal guardian) is appointed by a court to care for the personal and property interests of another individual (a ward) in situations where the latter is unable to function independently. Guardians are appointed to represent children, developmentally disabled and mentally ill adults, and the elderly who have been deemed legally incompetent and to make decisions on their behalf. The appointment of a guardian represents a critical point in a ward's life as it essentially rescinds that person's right to make independent decisions.

[Page 339]Judges often rely on input from psychologists or other mental health professionals to help them determine whether guardianship is appropriate. Ideally, family members or close friends are appointed as guardians, keeping the ward's best interests in mind, though this is not always the case.

Guardianship statutes originate from the doctrine of parens patriae, which gives to the state the right and duty to protect people who cannot care for themselves due to infancy, disability, or incapacity. The request for guardianship often comes from a family member who petitions a court to be allowed to make decisions concerning a relative, though public guardians are sometimes appointed to represent the interests of wards who have no relatives or friends to assume that role. The appointment of a guardian essentially rescinds an individual's right to independence and self-determination and can result in the loss of freedom to make decisions about financial matters, health care, housing, education, employment, purchases and sales of property, travel, and marriage and divorce.

Guardianship practices are dictated by state statutes rather than by federal laws, resulting in subtle differences in the type and scope of guardianship arrangements, though nearly all statutes distinguish between protection of an individual and protection of an estate (in some jurisdictions, these responsibilities are termed guardianship and conservatorship, respectively) and between full (or “plenary”) guardians, who make critical decisions in all realms of a ward's life, and partial (or “limited”) guardians, who may act only in restricted domains as determined by a court. The intent of limited guardianship is to preserve a ward's autonomy as much as possible so that he or she may continue to function independently.