Guardianship

Question 1

Basics

Answer 1

Guardian of the person: RIGHT to take charge of ward, establish ward’s legal domicile; DUTY to provide care, supervision, and protection, provide clothing food, medical care and shelter; MAY consent to medical, psychiatric and surgical treatment; bond must be given within 20 days

Guardian of the estate: RIGHT and DUTY to possess and manage the ward’s property, enforce obligations in favor of ward, and bring and defend suits by or against the ward; DUTY to manage ward’s estate as a prudent person would; MUST account for all rents, profits, and revenues earned by estate; bond CANNOT be waived

Guardianship is subject to strict court supervision

ANY person has standing to bring guardianship proceeding

NO co-guardians

Standard of evidence for proving ward is incapacitated: clear and convincing evidence

Annual review assesses whether guardianship should continue, be modified, or be terminated

Question 2

Minor Child: Who Can Be Appointed Guardian

Answer 2

Parents are natural guardians of the child’s person, but not automatic power to manage estate!

Age 12+ may choose the guardian

• If Parent Is Living: 1 parent is entitled to be appointed as guardian of the estate (can be of all children); separate guardianship of the estate MUST be taken out for each child; if parents can’t agree, court chooses parent
• Orphan Minor: last surviving parent can appoint by will or written declaration (court will generally honor it) but must be signed parent, written wholly in parents handwriting or attested by 2 Ws at least 14YO; if not, child’s grandparent is entitled to guardianship of both person and estate; if no living grandparents, nearest of kin; if no relative is eligible/interested

Question 3

Disqualification of Guardian

Answer 3

Grounds:

• lacks capacity (e.g., is a minor)
• lacks experience to properly and prudently manage or is otherwise unsuitable
• has a conflict of interest
• is a nonresident who has not named a resident agent
• has been expressly disqualified by a “Designation of Guardian Before Need Arises”
• convicted of sexual offense, sexual assault, injury to child or elderly, etc. (appointment presumed not to be in ward’s best interest)

Question 4

Responsibilities

Answer 4

Within 30 days of appointment, guardian must:

• qualify by taking oath and posting fiduciary bond (within 20 days)
• publish notice of administration in newspaper in county (within 30 days)
• file inventory or affidavit in lieu of inventory (within 30 days)
• file application for monthly allowance for ward (within 30 days)