GUARDIAN AND WARD
The legal relationship that exists between a person (the guardian) appointed by a court to take care of
and manage the property of a person (the ward)
who does not possess the legal capacity to do so, by
reason of age, comprehension, or self-control.
The term guardian refers to a person
appointed by a court to manage the affairs of
another person who is unable to conduct those
affairs on his or her own behalf. The term is
most often applied to a person who is responsi-
ble for the care and management of an infant,
which in legal terms is a person below the age of
majority. Thus, children who have not reached
adulthood (usually age 18 or 21) must, with
some exceptions, have a legal guardian.
Courts also appoint guardians to supervise
the property and personal well-being of adults
who cannot manage their affairs. Persons inca-
pacitated because of mental or physical illness,
drug or alcohol abuse, or other disability may
require the appointment of a guardian to ensure
the conservation of their PERSONAL PROPERTY
and to oversee their day-to-day personal care.
The term conservator is often used for a person
designated to manage the property of an adult
who is unable to do so.
The law of guardianship is based on the
COMMON LAW and has been the province of
state government. This law has been modified by
state statutes. For example, Section V of the UNI-
FORM PROBATE CODE, a model set of procedures
governing the administration of trusts and
estates, contains rules that guide courts in man-
aging guardianships. The Uniform Probate
Code (1969), adopted by virtually every state,
has done much to streamline probate law. In
1982, provisions of the code were updated via
the Uniform Guardianship and Protective Pro-
ceedings Act (UGPPA). As legislation changed,
and issues arose concerning the protection of
wards, the UGPPA underwent scrutiny. The act
was revised over the course of several years and,
in 1997, it was officially approved by the
National Conference of Commissioners on Uni-
form State Laws. The act updated procedures for
appointing guardians and conservators and pro-
vided DUE PROCESS protection for adults who
are incapacitated.
There are two basic types of guardians: of
the person and of the property. A guardian of
the person has custody of the ward and respon-
sibility for the ward’s daily care. A guardian of
the property has the right and the duty to hold
and manage all property belonging to the ward.
A ward usually has a general guardian, who
supervises both the person and the property, but
in some circumstances it is necessary and con-
venient to divide responsibilities.
Persons for Whom a Guardian Is Appointed
A guardian cannot be appointed for a person
unless that person is in need of supervision by a
representative of the court. The natural guardian
of a child is the child’s parent. A parent can lose
this status by neglect or ABANDONMENT. In addi-
tion, when both parents die, leaving a minor
child, the court will often appoint a guardian.
Guardians can also be appointed in medical
emergencies. If a parent refuses to permit neces-
sary treatment for a child, such as a blood trans-
fusion or vaccination, the court can name a tem-
porary guardian to consent to such treatment.
An adult has the right to refuse medical treat-
ment, even if his or her life is in immediate dan-
ger.However, if there is evidence that the adult is
not thinking clearly or is not making the deci-
sion voluntarily, a guardian can be appointed to
make the decision.
Selection of a Guardian
Courts of general jurisdiction in most states
have the authority to appoint guardians. Typi-
cally, probate courts and juvenile courts hear
cases involving guardianship. Probate courts,
which oversee the administration of the estates
of decedents, are the most common forum for
the appointment of guardians. Juvenile courts
decide on the appointment of guardians when a
child has been removed from the home because
of abuse or neglect, or has been declared a ward
of the court. Generally, a court can appoint a
guardian for a minor wherever the child lives. If
a child lives in one state and has title to real
estate in another state, a guardian can be
appointed where the property is, in order to
manage it.
A parent can appoint a guardian, usually by
naming the guardian in a will. Some state laws
allow a child to choose his or her own guardian
if the child is over a certain age, usually 14. A
court must approve the choice if the proposed
guardian is suitable, even if the court believes
someone else would be a better choice. Before
approving the child’s choice, however, the court
must satisfy itself that the child understands the
effect of the nomination and that the choice is
not detrimental to the child’s interests or con-
trary to law.
Guardianship statutes specify which persons
have the right to ask a court to appoint a
guardian for a certain child. Most of these laws
list people who would be expected to have an
interest in the child’s WELFARE, usually relatives.
Some statutes are more general, permitting
applications to be filed by “any person.” A court
must examine a petition to determine whether
the person applying for appointment as
guardian really has the child’s interest at heart.
Factors in Choosing a Guardian
The choice of a guardian for a child is guided
by the needs of the ward. The ward’s age, affec-
tions for certain people, education, and morals
