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, 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. 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. Guardianship intends to serve as a safeguard to protect the ward. Anyone can petition for a guardianship hearing if they believe another individual cannot make rational decisions on their own behalf. In a guardianship hearing, a judge ultimately decides whether guardianship is appropriate and, if so, will appoint a guardian. 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, 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. 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 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. The determination of whether a guardianship is necessary may consider a number of factors, including whether there is a lesser restrictive alternative, such as the use of an already existing power of attorney and health care proxy. In some cases, a guardianship dispute can become quite contentious and can result in litigation between a parent and adult children or between different siblings against each other in what is essentially a pre-probate dispute over a parent's wealth.
Guardianship abuse Sometimes guardians misuse their authority and harm the person they are supposed to protect including financial, physical, psychological or any other type of abuse of an older person or person with a disability. 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. 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. 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. A similar investigation by ProPublica in 2024 discovered a guardianship company in New York (New York Guardianship Services) has chronically provided little to no actual services for elderly individuals under their care while consistently taking money from them. One example includes the company taking money from an individual who had left the country and died.
Guardianship for minors
Natural guardian A minor child's parents are the child's natural guardians.
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. 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).
Guardianship for 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 mentally or physical disabled child who reaches adulthood, 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 Britney Spears, who was placed into a conservatorship under the supervision of her father, Jamie Spears, and attorney Andrew Wallet in 2008, following a series of highly publicized personal struggles and issues with mental health.
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