Guardianship
| Author | Jeffrey Wilson |
| Pages | 805-808 |
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A guardian is someone who is chosen, either by a court or by being named in a will, to make decisions for someone else when that person—generally referred to as the ward—cannot do the same for him or herself. These types of decisions include: giving consent to medical care or treatment; purchasing or arranging for purchase of such necessities as food, clothes, cars, household items, and other personal items; arranging for education; and managing finances and bank accounts.
A guardianship requires that someone act on behalf of and protect the ward during the period of time when the ward is incapable of doing so. When asking the court appoints a guardian in a particular situation, the court must be sure that the potential ward is incapacitated and cannot make decisions for him or herself because of a mental or physical disability, disease, or addiction to alcohol or other drugs. The fact that potential wards are minors who lack someone to make certain decisions on their behalf until they reach the age of majority is also sufficient reason to ask the court to appoint a guardian.
The selection of a guardian is an extremely important task. Certain people, with ties to the ward, are preferred by courts as possible guardians. These include the person designated by the ward, before the period of incapacity occurred, by legal document or otherwise to handle his or her affairs; the spouse; parents; or another relative; or a state employee or private person familiar with the ward and the incapacity at issue. Whoever is chosen by the court must be willing and able to perform the duties at hand and to represent the best interests of the ward. In selecting the guardian, the court considers the prospective guardian's character, history, physical capacity, and other relevant attributes. A potential guardian's limited education or financial resources are not disqualifying conditions in and of themselves.
The guardianship statutes of each state detail the specific duties, responsibilities, and powers of the guardian. They should be examined in order to determine the regulations that apply to each situation.
The guardianship of a minor can be over the actual minor (or what is commonly referred to as the minor's person), the property (or estate) of the minor, or both. Preferred guardians for a minor are parents and then other relatives. However, the primary consideration in selecting a guardian is the best
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interests of the minor. If the parents are still alive, before a nonparent is chosen as a guardian, the parents must be determined to be unable or unfit to look after the best interests of the minor. When minors are removed from the care and supervision of their parents, and adoption is either not forthcoming or not a viable option, guardianship is considered a reasonable alternative.
Even after a guardian is chosen for a minor, most state statutes allow that at age fourteen (or other reasonable age), the minor may select or at least voice a preference, concerning who will be selected to serve a guardian.
The guardian of a...
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