Legal guardian
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A legal guardian is a person who has been appointed by a court or otherwise has the legal authority (and the corresponding duty) to make decisions relevant to the personal and property interests of another person who is deemed incompetent,[1] called a ward. For example, a legal guardian might be granted the authority to make decisions regarding a ward's housing or medical care or manage the ward's finances.[2] Guardianship is most appropriate when an alleged ward is functionally incapacitated, meaning they have a lagging skill critical to performing certain tasks, such as making important life decisions.[3] Guardianship intends to serve as a safeguard to protect the ward.[4]
Anyone can petition for a guardianship hearing if they believe another individual cannot make rational decisions on their own behalf.[1] In a guardianship hearing, a judge ultimately decides whether guardianship is appropriate and, if so, will appoint a guardian.[2] Guardians are typically used in four situations: guardianship for an incapacitated elderly person (due to old age or infirmity), guardianship for a minor, and guardianship for developmentally disabled adults and for adults found to be incompetent. A family member is most commonly appointed guardian [citation needed], though a professional guardian or public trustee may be appointed if a suitable family member is not available.
Guardianship for incapacitated elderly
Guardianship for an incapacitated elderly person typically arises when someone determines that an elderly person has become unable to care for their own person and/or property. In fact, most alleged wards are elderly (Ms = 76–82 years), many of whom resided in a care facility and had been diagnosed with a neurological impairment such as dementia.[3] Typically, a precipitating incident prompts a professional, family member, health care worker, or clergyman to initiate guardianship proceedings. While guardianship intends to protect and support incapacitated elderly people unable to care themselves or engage in the activities of daily living without assistance, guardianship sometimes results in financial exploitation of wards.
The process will generally start with a determination whether the alleged incapacitated person is actually incapacitated. There will often be an evidentiary hearing. A systematic review [3] of guardianship studies from the United States, Sweden, and Australia found that the most commonly used evidence in guardianship hearings was the alleged ward's medical condition; perhaps surprisingly, descriptions of the alleged ward's cognitive abilities, functional abilities and psychiatric symptoms are much less common.
If the court determines an individual is incapacitated, the court then determines whether a guardian is necessary, the extent of the guardian's legal authority, (e.g. a guardian may be needed for the person's finances but not for the person) and, if so, who the guardian should be.
Abuses
A report published in 2010 by the U.S. Government Accountability Office looked at 20 selected closed cases in which guardians stole or otherwise improperly obtained assets from clients. In 6 of these 20 cases, the courts failed to adequately screen guardians ahead of time and appointed individuals with criminal convictions or significant financial problems, and in 12 of 20 cases, the courts failed to oversee guardians once they had been appointed.[7][8]
In October 2017, The New Yorker published an article looking at the situation in Nevada in which professional guardians sometimes have a number of clients, and argued toward the conclusion that in a number of cases the courts did not properly oversee these arrangements.[9] In 2018 the investigative documentary "The Guardians" was published, alleging "legal kidnapping of elderly people" in Nevada by private guardianship businesses with no familial or other preexisting relations to their wards, seeking to economically profit from seniors' savings.[10]
Guardianship for minors
Natural guardian
A minor child's parents are the child's natural guardians.[11]
Legal guardian
Most jurisdictions recognise that the parents of a child are the natural guardians of the child, and that the parents may designate who shall become the child's legal guardian in the event of death, typically subject to the approval of the court. The court may appoint a guardian for a minor if their parents are disabled or deceased or if the minor's parents cannot properly manage their child's safety and well-being.[12] If a non-parent is appointed as guardian, the court will determine how the parents' parental rights are impacted by the appointment (e.g., establishing visitation schedules).[13]
Guardianship for developmentally disabled adults
Legal guardians may be appointed in guardianship cases for adults (see also conservatorship). For example, because parents are not automatically appointed to serve as the guardian of their developmentally-disabled child who reaches adulthood,[2] parents may start a guardianship action to become the legal guardians when the child reaches the age of majority.
A famous example of such an arrangement is the situation involving
Rules applicable to all guardians
Courts generally have the power to appoint a guardian for an individual in need of special protection. A guardian with responsibility for both the personal well-being and the financial interests of the ward is a general guardian. A person may also be appointed as a special guardian, having limited powers over the interests of the ward. A special guardian may, for example, be given the legal right to determine the disposition of the ward's property without being given any authority over the ward's person.
Depending on the jurisdiction, a legal guardian may be called a "
A guardian is a
Guardian ad litem
The Latin legal term ad litem means "for the lawsuit" or "for the legal proceeding". A guardian ad litem is thus someone appointed to represent in court the interests of a person too vulnerable to represent themselves, typically due to youth or mental incapacity.
Guardianship is not federally regulated in the United States; therefore, states vary widely in how they address and manage guardianship cases.[15][12]
Family law and dependency courts
Guardians ad litem (GsAL) are persons appointed by the court to represent "the best interests of the child" in court proceedings. They are not the same as "legal guardians" and are often appointed in under-age-children cases, many times to represent the interests of the minor children. Guardians ad litem may be called, in some U.S. states, Court Appointed Special Advocates (CASA). In New York State, they are known as attorneys-for-the-child (AFCs). They are the voice of the child and may represent the child in court, with many judges adhering to any recommendation given by a GAL. GALs may assist where a child is removed from a hostile environment and custody given to the relevant state or county family services agency, and in those cases assists in the protection of the minor child.
Qualifications vary by state, ranging from no experience or qualification, volunteers to
Although a guardian ad litem working through a CASA program volunteers their services, some guardians ad litem are paid for their services. They must submit detailed time and expense reports to the court for approval. Their fees are taxed as costs in the case. Courts may order all parties to share in the cost, or the court may order a particular party to pay the fees. Volunteer guardians ad litem and those that volunteer though a CASA program need to make sure that they do not engage in the unauthorized practice of law. Therefore, when they appear in court (even if they are an attorney) as a volunteer GAL, it is best practice to be represented by an attorney and have attorneys file motions on their behalf.
Guardians ad litem are also appointed in cases where there has been an allegation of
Mental health and probate courts
Guardians ad litem can be appointed by the court to represent the interests of mentally ill or disabled persons. For example, the Code of Virginia requires that the court appoint a "discreet and competent attorney-at-law" or "some other discreet and proper person" to serve as guardian ad litem to protect the interests of a person under a disability.[23]
Estates and financial decision making
Guardians ad litem are sometimes appointed in probate matters to represent the interests of unknown or unlocated heirs to an estate.
Settlement guardians ad litem
When a settlement is reached in personal injury or medical malpractice case involving claims brought on behalf of a minor or incapacitated plaintiff, courts normally appoint a guardian ad litem to review the terms of the settlement and ensure it is fair and in the best interests of the claimant. The settlement guardian ad litem thoroughly investigates the case, to determine whether the settlement amount is fair and reasonable.[24]
Alternatives to guardianship
Because guardianship limits a ward's autonomy and ability to make certain life decisions, guardianship has the potential to damage a ward's health and well-being.[1][2] As a result, individuals considering guardianship to support a loved one with functional incapacities might consider whether there are less restrictive alternatives that can achieve the same objectives.[1][25][15][2] Three examples of alternatives include establishing advance directives,[15][1][2] relying on supported decision-making,[15] or taking advantage of community-related services that support individuals with functional limitations.[2]
Further, some individuals with limited functional capacities might maintain their autonomy by relying on family or friends who can help that individual informally or formally navigate important life decisions without formal guardianship,[2] called “supported decision-making.” [27][15] For example, these support individuals can provide suggestions on where their loved one should live or recommend certain treatment options in medical settings.[2] This support system can also help the individual modify their environment to promote their success. For example, if a family member is concerned that their loved one with reduced functional capacity might engage in an unsafe behavior (e.g., leaving the gas stove on), this family member can reduce the opportunity for this behavior (e.g., removing the gas stove) without court involvement.[2] This technique allows individuals to support and empower loved ones who are cognitively impaired.[27]
Finally, employing community services that will alleviate stressors of daily living may allow an alleged ward to maintain their autonomy.[2] For example, certain volunteer organizations provide services such as telephone check-ins and home visits, and many medical or mental health professionals offer in-home services.[2]
In summary, while guardianship sometimes offers the best solution to supporting an individual who demonstrates functional incapacity, one might consider exploring alternative solutions before seeking legal guardianship.[25][2]
Guardianship by country
Republic of Korea
Types of Guardians under Korean Guardianship Law
- Adult guardian (성년후견인): If an adult chronically lacks the mental competence to manage their own matters due to illness, disability, old age, or other conditions, a Korean court may appoint an adult guardian. This type of guardianship in Korea gives near total power over the ward to the Adult Guardian.
- Limited guardian (한정후견인): A person may also be designated as a “special guardian,” entrusted with restricted authority over the ward's interests. For example, a special guardian may be granted the legal authority in Korea to decide how to handle the ward's assets without being granted any control over the ward's person.
- Specified guardian (특정후견인): A specified guardian is a person appointed to represent a person's interests in relation to a particular court proceeding or process.[28]
The process of appointing a guardian through Korean courts
The Korean Family Courts, typically, has the authority to appoint a guardian in Korea. A general adult guardian is one who is in charge of both the ward's financial interests and personal welfare. The Korean family court, or one of its branches, has authority over the ward's address and will hear the guardianship case. When the Family Court is not present in the ward's address, typically, a district court or a branch court has jurisdiction over the matter.
Typically, after an evaluation of the ward's health by a doctor, the court proceedings begin. The court will often question the ward and hear his/her testimony regarding the guardianship. So that the ward can make the most use of his or her remaining capacity and choose a suitable guardian. The court has the power to decide the beginning of guardianship, the choice of a guardian, change of guardian, cessation of guardianship, the extent of the legal representative's authority, etc.[29]
England and Wales
Guardians ad litem are employed by Children and Family Court Advisory and Support Service (CAFCASS), a non-departmental public body, to represent the interests of children in cases where the child's wishes differ from those of either parent, known as a Section 16.4 case. The posts are filled by senior social workers with experience in family law proceedings.
In 2006, a legal status of "special guardianship" was introduced (using powers delegated by the Adoption and Children Act 2002) to allow for a child to be cared for by a person with rights similar to a traditional legal guardian, but without absolute legal separation from the child's birth parents.[30] These are not to be confused with court-appointed special guardians in other jurisdictions.
Prisoners
See section 13 of the Prison Act 1952.
In section 4 of the Official Secrets Act 1989, the expression "legal custody" includes detention in pursuance of any enactment or any instrument made under an enactment.[31]
Children
See section 86 of the Children Act 1975.
Mental patients
Any person required or authorized by or by virtue of the
Germany
The German guardianship law with regard to adults was completely changed in 1990. Guardianship (Vormundschaft) of an adult was renamed 'curatorship' (Betreuung), although it remains Vormundschaft for minors. When a person of full age who, as a result of mental disease or physical, mental or psychological handicap or otherwise is incapable of managing his own affairs, a guardian (Betreuer) can be appointed (section 1,896, German Civil Code). An adult guardian is responsible for personal and estate matters, as well as for medical treatment. However, the ward has normally full capacity with all human rights such as those to marry, vote or make a will. The ward's legal capacity can be lost as a result of a court judgment or order (section 1903, German Civ. C.; Einwilligungsvorbehalt). Every guardian has to report annually to the guardianship court (Betreuungsgericht). Professional guardians (Berufsbetreuer) normally hold university degrees in law or social work.
Israel
In Israel, over 50,000 adults have had legal guardians appointed for them; 85% of them have family members as their guardians, and 15% have professional guardians. Until 2014, guardians (the term there is "Apotropos") were supervised by the Office of the Administrator General at the Ministry of Justice in matters of property only. However, changes in Israel and other countries along with public pressure, appeals to the courts by social organizations, academic studies and the State Comptroller's 2004 report led to the decision to broaden the scope of supervision to include personal matters as well, to ensure that the guardians take care of all areas of life, including medical care, personal care, suitable housing, work and employment, social and recreational activities, etc., taking account of the person's wishes and acting accordingly. The Office of the Administrator General (public guardian) at the Ministry of Justice is now implementing a system to supervise guardians in regard to personal matters in order to help identify situations in which guardians are not performing their duties adequately.[34]
Republic of Ireland
The court-appointed guardian system in the Republic of Ireland was brought into law on the proposal of the noted gay activist and member of Seanad Éireann (the Irish Senate), David Norris. The Children Acts Advisory Board which was set up to advise the ministers of the government on policy development under the Child Care Act 1991 was then abolished in September 2011. Judges are responsible for appointing child guardians and can choose guardians from Barnardo's a children's charitable service or from among the self-employed guardians, who are mostly former social workers who have gone into private business since the legislation.[35][36]
Saudi Arabia
Saudi Arabia has edited the law, and women in Saudi Arabia are no longer required to have a male guardian (Wali) to give permission for various government and economic transactions, as well as some personal life and health decisions.
Sweden
Since the year 2017, the ward can, while she still have her mental abilities, write a special
See also
- Conservatorship
- Custodial account
- Foster care
- Receivership
- Wali (Islamic legal guardian)
- Jewish lawand Israeli law
References
- ^ OCLC 1026274671.)
{{cite book}}
: CS1 maint: multiple names: authors list (link - ^ JSTOR 23880988.
- ^ S2CID 33108335.
- ^ Frolik, Lawrence A. (2012). "Guardianship reform: When the best is the enemy of the good". Stanford Law & Policy Review. 9 (2): 347–358 – via Hein Online.
- ^ "Guardianship—Acting for Adults Who Become Disabled". State Bar of Michigan. Retrieved 20 December 2017.
- ^ "Alternatives to Guardianship and Conservatorship for Adults in Iowa" (PDF). National Resource Center for Supported Decision-Making. 2007. Retrieved 20 December 2017.
- ^ Guardianships: Cases of Financial Exploitation, Neglect, and Abuse of Seniors, Highlights, U.S. Government Accountability Office, Published: Sep 30, 2010. Publicly Released: Oct 27, 2010.
- ^ Column: With U.S. elder abuse in spotlight, a look at guardians, Reuters, Mark Miller, October 20, 2017.
- ^ HOW THE ELDERLY LOSE THEIR RIGHTS, Guardians can sell the assets and control the lives of senior citizens without their consent—and reap a profit from it, The New Yorker, Rachel Aviv, October 9, 2017.
- ^ "The Guardians". guardiansdocumentary.com. Archived from the original on June 27, 2018.
- ^ "Guardianship of children". Community Law. Community Law Centres o Aotearoa. Retrieved 20 December 2017.
- ^ a b Wex Definitions Team (January 2022). "Guardianship". Cornell Law School Legal Information Institute. Retrieved October 14, 2022.
- ^ "Guardianship - Family Court - Delaware Courts - State of Delaware". courts.delaware.gov. Retrieved 2022-12-04.
- ^ "Local Guardianship Programs" (PDF). txcourts.gov. Archived from the original (PDF) on 2 January 2014. Retrieved 2014-01-01.
- ^ a b c d e "Guardianship". www.justice.gov. 2018-09-12. Retrieved 2022-12-04.
- ^ "Volunteer as a GAL | North Carolina Judicial Branch". www.nccourts.gov. Retrieved 2024-01-14.
- ^ Group, Johnson Law (2021-01-30). "Best Guardian Ad Litem In Colorado". Best Family Law Attorney in Colorado - Johnsonlgroup. Retrieved 2024-01-14.
- ^ "Guardian ad Litem Qualifications - What is required for appointment?". Retrieved 2024-01-14.
- ^ "MINNESOTA GUARDIAN AD LITEM-RELATED RULES OF PROCEDURE". Minnesota Family Services. Guardian Ad Litem Program. Retrieved 2024-01-14.
- ^ "Guardian ad Litem Homepage / Guardian Ad Litem". Guardian Ad Litem. Retrieved 2024-01-14.
- ^ "Minnesota Guardian ad Litem Program (MN) - Class Specification Bulletin". agency.governmentjobs.com. Retrieved 2024-01-14.
- ^ "GAL Volunteers". North Carolina Court System. Retrieved 20 December 2017.
- ^ "LEO: Conflict; Appearance of Impropriety, LE Op. 1725 (1999)". Virginia State Bar. 20 April 1999. Retrieved 20 December 2017.
- ^ Davidson, Mark (6 December 2003). "Role of the Ad Litem in Personal Injury Litigation" (PDF). Jackson Walker. Archived from the original (PDF) on 21 May 2006. Retrieved 20 December 2017.
- ^ PMID 21364144– via PubMed Central.
- PMID 28679811.
- ^ )
- ^ Khan, Sarah (2023-01-30). "The Formalities under the Guardian Law in Korea". The Korean Law Blog by IPG Legal. Retrieved 2023-01-30.
- ^ Hayes, Sean (2023-01-30). "Appointment of a Guardian in Korea". The Korean Law Blog by IPG Legal. Retrieved 2023-01-30.
- ISBN 978-1-137-03770-1.
- ^ The Official Secrets Act 1989, section 4(6).
- ^ The Mental Health Act 1983, section 137(1).
- ^ The Mental Health Act 1983, section 137(3)
- ^ Dr. Shirli Resnizky, Ittay Mannheim, Ellen Milshtein, Jenny Brodsky, Dori Rivkin, Hana Goldenberg, Chaya Rozenfeld. Pilot for Supervision of Legal Guardians for Personal Affairs: Summary Report. Jerusalem: Myers-JDC-Brookdale Institute (2019).
- ^ "Children Acts Advisory Board". Retrieved 20 December 2017.
- ^ "Barnardos". Retrieved 20 December 2017.
- ISBN 978-91-39-11593-9.