Guardianship Primer for Pro Bono Attorneys

“Guardian” is a term used to describe the position of one legally responsible for caring for an individual who is unable to do so for themselves. The individual in need of guardianship, called a ward, may be a minor whose parents have died or abandoned the minor, or are simply no longer capable of caring for them. A ward may also be an adult with an intellectual disability that impairs their ability to make decisions regarding their own health and safety. Alternatively, the ward may be an elderly or recently incapacitated individual who has lost the ability to make decisions for themselves.

Because guardianship can be permanent and is considered restrictive, courts will only appoint a guardian if it is deemed necessary to protect the interests of the individual.  Specific steps are taken to safeguard those interests such as giving the potential ward notice of the guardianship proceeding. Notice is a right that cannot be taken or restricted. In addition to notice, that same individual has the right to attend the hearing, confront witnesses, and even present evidence – and it doesn’t stop at the hearing. Once the guardian is appointed, they are encouraged to continue respecting the wishes of the ward, ensuring the individual is given as much autonomy as possible. One thing that should be kept in mind is that guardianship can include guardianship of the person, guardianship of the estate, or both. SALSA’s guardianship program focuses on assisting those qualified applicants seeking guardianship of the person. So – what exactly is guardianship of the person?

The individual appointed guardian of the person is responsible for making decisions regarding the care and control of the ward, rather than the property and finances of the ward. The guardian of the person is tasked with ensuring the ward has what is deemed necessary to survive such as food, clothing, and shelter. While the guardian is, again, encouraged to consider what the ward wants in making such decisions, the weight of doing so ultimately falls back on the guardian. One who is appointed guardian can anticipate the responsibility of providing medical consent on behalf of the ward. An appointed guardian may also be responsible for arranging any professional services necessary for the ward.

Generally, a guardianship will continue until the ward passes away. However, a court may determine guardianship is no longer appropriate, ending the appointment. This may be determined at the turn of the year, as a guardian is required to turn in an annual report “updating” the court on the condition of the ward. They may also have court monitors visit with the ward, evaluating the conditions of the individual, their living environment, and the guardian to assist with making an appropriate determination. Guardianship may end if the court determines the individual has reached the age of majority, regained capacity, or is no longer in need of assistance. The guardianship may also end if it is deemed the particular guardian is incapable of providing the required care and assistance due to or their own incapacity or mistreatment of the ward. The overall goal is to ensure decisions being made are in the ward’s best interest and that they receive proper care and support. And at the end of the day – that is what matters most.

For more information regarding guardianship to support your in your volunteer service, visit SALSA’s Resource Library.

Source:  “Guardianships.” Justia, 21 Mar. 2019, 

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