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The Facts About Guardianship Debunking the Myths Understanding the Realities

By: Deborah Green, Attorney At Law

A person is in need of the legal protection of a guardian when, in the opinion of the person’s treating physician and supported by other evidence, that person is substantially unable to provide food, clothing, or shelter for himself or herself or to manage his or her financial affairs. If the court finds that this is true the person is declared by the court to be legally “incapacitated” and in need of the appointment of a guardian. (See “The Purpose, Roles, and Responsibilities of a Guardian,” by David B. Pharis, LMSW-ACP.)

Following is a brief synopsis of the most commonly held misconceptions about legal guardianships and the realities that correspond to them.

Myth: If a person is diagnosed with mental illness or emotional instability of any kind, the court will appoint someone to act as their guardian. Guardians can commit the person with mental illness or experiencing a period of emotional instability to in-patient treatment in a psychiatric hospital even against the will of that person.

Reality: An episode of mental illness or emotional instability, or a situation of physical disability, alone is not sufficient to raise to the definition given above for a person to be found incapacitated and have a guardian appointed for them by the court. Even if a person is sufficiently debilitated by a condition of mental illness or emotional instability to be found by the court to be a legally incapacitated person, and the court appoints a guardian for that person, the guardian cannot involuntarily (against the person’s will if the person is over age 16) commit the person to in-patient treatment in a psychiatric hospital. Guardianship of the Person gives the guardian the right to make medical decisions for the incapacitated person (known as the “Ward”) including the right to make the decision to begin or end life support.

Myth: Parents are the legal guardians of their minor children and do not need to be appointed as guardian by a court.

Reality: Parents are the “natural” guardians of their minor children’s persons. They are not the children’s legal guardians. A minor child (a child under the age of 18) is in need of a legal guardian when that child does not have a parent (e.g., both parents are deceased) or a legal conservator, capable of meeting the child’s physical needs or protecting the minor’s property. If a minor child is entitled to receive property, e.g., the child inherits property from a grandparent when that child is under age 18, the child’s parent must be appointed by the court to be the legal guardian of the child’s estate in order to control, safekeep, and prudently manage the child’s property. Being the child’s natural guardian, by itself, does not legally give a parent the right to control, safekeep, or manage the child’s property.

Myth: A guardian can be held legally and personally liable for the actions of their Ward. Guardians are also personally liable for the debts and expenses of their Ward.

Reality: A guardian of the person has a legal duty to care, control, and protect their Ward, and to provide their Ward with food, clothing, shelter, and medical care. These duties do not mean that a guardian can be held liable to third persons for the actions of their Ward solely because they are the guardian. A guardian being held liable for the actions of the Ward would have to include some act of negligence taking place on the part of the guardian as well. For example, a guardian cannot be held liable for the criminal actions of their Ward when the guardian had no knowledge that the Ward had committed or was going to commit a crime. It is not true that a Guardian must use their own funds to financially provide for their Ward’s needs. The costs and expenses of the Ward’s needs are to be paid from the assets and property of the Ward’s estate. This obligation of the Ward’s estate includes paying the fees and expenses, including attorney’s fees or other professional fees, of establishing and maintaining the guardianship in court.

Myth: Parents continue to have the right to make all decisions for and act on behalf of their adult (children over age 18) incapacitated children.

Reality: When a person reaches age 18 they are considered by law to be an adult and they automatically are bestowed in law with all of the rights and responsibilities of citizens and free persons in our country. In order to continue to act on behalf of and to protect adult incapacitated children, e.g., make medical decisions for the child, decide the child’s residence, handle the child’s property and financial affairs, or decide whether or not the child can marry, etc., the parent(s) must be appointed by a court as legal guardian of the child.

Although there are many more misconceptions about guardianships and the legal connection created between a guardian and a Ward, guardianships are very often the single most important and supportive relationships in the lives of the people involved. To serve as a guardian for a disabled or incapacitated loved one is a big job with many responsibilities but it may very well demonstrate your love and commitment to protecting that loved one more than anything else you could do for them.

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