Most people have legal control over themselves and their property. They are able to act on their own behalf. But when a living person is unable to protect or care for himself or herself, or for his or her property, because of old age, illness, or other disability, the law of guardianship (or conservatorship) permits the appointment of a competent person to protect and care for the incompetent person and/or manage the incompetent person’s property. The appointment of a competent person to protect, care for, and/or manage property for an incompetent person is usually governed by a state’s probate court.
Guardian or Conservator
In most states, the person appointed to protect and care for an incompetent person and/or manage the incompetent person’s property is known as a guardian. In most states, a person with special expertise who is appointed to manage specific property, such as a business, is known as a conservator. In some states, however, the opposite is true. The generalist is known as a conservator and the specialist is known as a guardian.
A ward is the incompetent person for whom a guardian or conservator is appointed. There are many special descriptive names for guardians. A general guardian protects, cares for, and manages both a ward and the ward’s property. A special guardian has limited authority. A guardian of the person is a person appointed solely to protect and care for a ward. A guardian of the estate or guardian of the property is a person appointed solely to manage a ward’s property. A guardian ad litem is a person appointed solely to bring or defend a lawsuit or otherwise represent another person’s interests in a legal proceeding, on behalf of that person.
A guardianship is usually supervised by the probate court. A guardian is a fiduciary — a legal representative upon whom the law imposes special duties of loyalty and trust. Because a guardian is a fiduciary, the guardian may be required to post a bond.
A guardian is usually formally appointed by a document known as letters of guardianship. The guardian is usually required to inventory the ward’s property and regularly report to the probate court all money and property received, used, or spent on behalf of the ward. The guardian is usually required to obtain the approval of the probate court for any large or unusual expenditure on behalf of the ward. The guardian is usually entitled only to fees as specified by the probate court.
Guardianship administration requires a lot of paperwork. Guardianship can be a cumbersome process for both the guardian and the ward.
A guardianship usually continues until it is no longer needed. Guardianship of a minor child terminates when the child reaches the age of majority, is emancipated, or dies. Guardianship of an adult terminates when a court rules that the guardianship is no longer necessary or the ward dies. Until then, if a guardian is unable to serve, another guardian is appointed for the ward. Although a guardian has broad authority to make decisions on behalf of the ward, the ward retains the right to hire an attorney to file suit, if necessary, to have the guardianship terminated.