Guardianship is a legal relationship between a competent adult or legal entity and a person who has a disability that leaves him or her without the capacity to make his or her own decisions.  In some jurisdictions, guardianship laws may apply to only minor children who are incapacitated by virtue of minority or who may suffer from some other legal incapacity.  In other jurisdictions, guardianship laws apply only to adults with diminished capacity. The guardian is lawfully invested with the power and charged with the duty of caring for and managing the affairs of another person who is considered by the court to be incapable of caring for himself/herself.

 

Generally, there are two types of guardianship: guardianship of the person and guardianship of the estate. A legal guardianship (beyond parents as natural guardians for minor children) must be created by a court.  When the guardianship involves an adult, the court must typically find the adult suffers from diminished functional capacity based on medical evidence.

 

The court may appoint a guardian of the person, of the estate, or both. The court may grant a guardianship of the person if the person has such diminished capacity that he or she is functionally unable to prudently manage his or her personal affairs.  The court may grant a guardianship of the estate when a person is functionally unable to prudently manage his or her financial estate.  Many jurisdictions require that the need for guardianship must be proven by clear and convincing evidence.   In each case the guardianship should be limited only to those areas  where the guardianship will improve a person’s life.  On overly-broad guardianship can result in a deprivation of a person’s substantive constitutional due process rights.

 

 

Guardianship cases are usually adjudicated at a local level, most often by county or district probate or family courts.  These courts have varying levels of skill and expertise.  In some jurisdictions the judges who adjudicate guardianship cases do not have to be licensed attorneys.

 

A guardianship should only be granted when it is in the best interest of a person and will improve a person’s life.  The guardian should be guided in decision making by state law and by ethics and standards for guardians, such as the National Guardianship Association’s Code of Ethics and Standards of Practice (see www.guardianship.org).