What is Guardian?

Legal Definition
Courts appoint guardians to care for people who cannot take care of themselves. The person a guardian protects is called that guardian's ward. Wards may be either minor children or incapacitated adults. In some other jurisdictions, "custodial" or "conservator" is used instead of "guardian," and some jurisdictions use different terms to refer to different types of guardianships, for example calling the protector of elderly wards a "conservator" while calling the protector of minor children wards a "guardian." Where appropriate, courts may appoint guardians with limited authority. Guardians are fiduciaries of their wards. See, e.g., Francine M. Neilson v. Colgate-Palmolive Co., 199 f.3d 642 (2d Cir. 1999).
Laws Regulating Guardians
Guardians are regulated by state and local statutes. Because guardians exercise considerable control over wards' lives and assets, they are subject to continuing court oversight after their appointment. Guardians responsible for their wards’ finances usually must regularly prepare an accounting statement for the court. In most jurisdictions, these statements must be submitted annually, and are in addition to a final accounting due when the guardianship ends. In addition, either the court or a third-party may object to guardians' management of their wards' estates. Guardians must obtain court permission for large or unusual expenditures. Guardianship issues are usually heard by a probate court, family court, or some other court of limited jurisdiction.

A court may not terminate parents' parental rights via a simple guardianship hearing. See Child Custody.
Guardians' Duties
Guardians have a duty to act in their wards' best interests. They have no duty to respect their wards’ wishes. They have complete control over their wards' finances, property, and care. For example, guardians are responsible for paying their wards' bills, making their wards’ living arrangements, overseeing their wards’ medical treatment, and, in the case of minor wards, insuring that they receive a good education.

Guardians are entitled to reasonable compensation from their wards, as well as reimbursement for expenses made on their wards' behalf. Whenever possible, guardians must cover expenses out of their wards’ income. They may, however, liquidate some or all of their wards’ assets with permission from the court.

Guardians represent their wards in all legal actions, unless the wards' interests conflict with the guardian's. For example, this authority allows guardians to accept or decline settlements and choose whether or not to pursue a claim.
Appointing a Guardian
When appointing a guardian, courts must act in the prospective ward’s best interests. They may consider any relevant characteristics of the guardian, including but not limited to the guardian's finances, health, education, trustworthiness, and relation to the prospective ward. The court may consider the prospective ward’s opinion, but need not defer to it. The court may not appoint a guardian whose interests conflict with the ward's. Before becoming a ward's guardian, a would-be guardian must post a surety bond. Most jurisdictions allow any competent person to petition to be an incompetent person's guardian, regardless of their relation with the proward.

A court may not appoint a guardian for someone unless that person is legally incompetent. For example, in most states anyone under 18 is presumably incompetent to manage their own affairs, and all states allow a court to declare a person incompetent after a hearing. These hearings are frequently combined with hearings to appoint a guardian. See Incompetence.

Usually, in a hearing to appoint a guardian, there are no formal plaintiffs and defendants, and all parties are presumed to be working in the prospective ward's best interest. Furthermore, guardianship hearings are civil, not criminal. Thus, even though a choice guardians can substantially impact a ward's live and liberty, wards do not enjoy many of the procedural protections available in typical cases. Similarly, even though guardianship hearings may involve aggressive attacks against prospective guardians' credentials and character, the targeted guardians do not have the right to respond as they would if they were, for example, parties in a normal civil action. The precise procedural and substantive rules governing guardianship hearings and their participants varies by jurisdiction. See Incompetence.

For example, if a sister and brother each want to be their mother's guardian, and the sister produces an affidavit attacking the brother's qualifications, in some jurisdictions, the affidavit would be admissibile evidence, and the brother would not have a right to interrogate the person who wrote it. In a typical civil or criminal case, the affidavit would normally be inadmissible as hearsay.
Temporary Guardians
Some jurisdictions have special procedures that allow courts to rapidly appoint a temporary guardian in an emergency. These special procedures allow courts to bypass many of the potentially time-consuming portions of guardianship proceedings and, in some cases, allow a judge to appoint a guardian without any hearing at all. For example, a judge might appoint a temporary guardian for a seriously ill child whose parents refused to allow medical treatment, or for an elderly person who posed on immediate threat to herself or others. The availability and characteristics of temporary guardianship proceedings vary by jurisdiction.
Who Becomes a Guardian?
Guardians can be split into roughly three types. First, some guardians are friends or family members of their ward. For example, an adult child might become the guardian of an elderly, mentally ill parent. Second, in some jurisdictions, there is a public guardians . Similarly, some government institutions act like guardians, even though they are not officially designated as a guardian. For example, some government protective agencies fulfill many functions traditionally performed by guardians, even though they are not technically considered guardians by the courts and are not subject to close court oversight. The role of public guardians and agencies varies by jurisdiction. Third, some people are professional guardians. They are often attorneys or other professionals who serve as guardians when more traditional candidates are unwilling or unable to provide wards with the care they need.
Limits on Guardians’ Authority
Courts may limit guardians' authority. "Guardians of the Estate" only manage their wards' financial assets. "Guardians of the Person" have no authority over their wards' assets, but are otherwise responsible for their wards' care and well being. In some jurisdictions, guardians of the estate are called "conservators," while guardians of ther person are called "guardians." A court must have personal jurisdiction over a prospective ward to appoint a guardian of the person, but only needs in rem jurisdiction over the guardian's in-state real property to appoint a guardian of the estate whose authority is limited to that property. This can result in a single ward having multiple guardians of the estate spread out over several states.
Terminating Guardianship
There are several ways that a guardianship can end. First, the court that appointed a guardian may subsequently dismiss that guardian, either on request or on its own. Secondly, a guardianship ends at the death of the ward. Third, a guardian of a minor child automatically ceases to be the child's guardian when the child comes of age. Finally, in some jurisdictions, a guardianship automatically ends if the ward marries. In some of these jurisdictions, marriage terminates guardianships of the person, but not guardianships of the estate.
Practical Difficulties
Even when everyone acts in good faith, contested guardian hearings can be incredibly difficult, time-consuming, and expensive. They can drag long-running, highly emotional family disputes into court rooms, frustrating judges and bogging down court proceedings. Because it can be very difficult to evaluate guardianship candidates, the process may involve multiple expert witnesses and and aggressive attacks on potential guardians credentials and character. Meanwhile, the would-be ward might vehemently deny that she is incompetent in the first place. During this process, legal fees continue to mount. Some judges simply cut through the process by appointing a professional guardian, often one the judge knows and trusts. This usually angers all other parties involved. Furthermore, after a guardian is appointed, well-intentioned relatives can repeatedly drag the matter back into court by challenging the guardian's qualifications and decisions.

When one or more parties act in bad faith, appalling miscarriages of justice can occur. Wards, like children, have little ability to legally challenge their guardians' decisions. They may not personally get a lawyer to sue their guardian or speak to the court on their behalf, because their guardian controls their finances and legal actions. Although others can challenge guardians' actions on wards' behalf, challenged guardians can use their wards' assets to pay the resulting legal fees. This problem is compounded because judges, plagued by crowded dockets, often lack the time or patience to deal with seemingly hysterical relatives who often represent themselves and have little understanding of how the legal system works. Finally, judges often do lack the time, training, or inclination to carefully monitor guardians' accounts and decisions, further limiting courts’ oversight of guardians. Thus, families concered that a guardian is looting her ward's estate are stuck in a tragic Catch-22.
Related Topics
Legal Definition
Domestic relations. Guardians are divided into, guardians of the person, in the civil law called tutors; and guardians of the estate, in the sam law are known by the name of curators. For the distinction between them, vide article Curatorship; 2 Kent, Com. 186 1 Bouv. Inst. n. 336, et. seq.

2. - 1. A guardian of the person is one who has been lawfully invested with the care of the person of an infant, whose father is dead.

3. The guardian must be properly appointed he must be capable of serving; he must be appointed guardian of an infant; and after his appointment he must perform the duties imposed on him by his office.

4. - 1st. In England, and in some of the states where the English law has been adopted in this respect, as in Pennsylvania; Rob. Dig. 312, by Stat. 12 Car. If. c. 24; power is given to the father to appoint a testamentary guardian for his children, whether born or unborn. According to Chancellor Kent, this statute has been adopted in the state of New York, and probably throughout this country. 2 Kent, Com. 184. The statute of Connecticut, however, is an exception; there the father cannot appoint a testamentary guardian. 1 Swift's Dig. 48.

5. All other kinds of guardians, to be hereafter noticed, have been superseded in practice by guardians appointed by courts having jurisdiction of such matters. Courts of chancery, orphans courts, and courts of a similar character having jurisdiction of testamentary matters in the several states, are, generally, speaking, invested with the power of appointing guardians.

6. - 2d. The person appointed must be capable of performing the duties; an idiot, therefore, cannot be appointed guardian.

7. - 3d. The person over whom a guardian is appointed, must be an infant; for after the party has attained his full age, he is entitled to all his rights, if of sound mind, and, if not, the person appointed to take care of him is called a committee. (q. v.) No guardian of the person can be appointed over an infant whose father is alive, unless the latter be non compos mentis, in which case one may be appointed, as if the latter were dead.

8. - 4th. After his appointment, the guardian of the person is considered as standing in the place of the father, and of course the relative powers and duties of guardian and ward correspond, in a great measure, to those of parent and child; in one prominent matter they are different. The father is entitled to the services of his child, and is bound to support him; the guardian is not entitled to the ward's services, and is not bound to maintain him out of his own estate.

9. - 2. A guardian of the estate is one who has been lawfully invested with the power of taking care and managing the estate of an infant. 1 John. R. 561; 7 John. Ch. R. 150. His appointment is made in the same manner, as that of a guardian of a person. It is the duty of the guardian to take reasonable and prudent care of the estate of the ward, and manage it in the most advantageous manner; and when the guardianship shall expire, to account with the ward for the administration of the estate.

10. Guardians have also been divided into guardians by nature; guardian's by nurture; guardians in socage; testamentary guardians; statutory guardians; and guardians ad litem.

11. - 1. Guardian by nature, is the father, and, on his death, the mother; this guardianship extends only to the custody of the person; 3 Bro. C. C. 186; 1 John. Ch. R. 3; 3 Pick. R. 213; and continues till the child shall acquire the age of twenty one years. Co. Litt. 84 a.

12. - 2. Guardian by nurture, occurs only when the ifant is without any other guardian, and the right belongs exclusively to the parents, first to the father, and then to the mother. It extends only to the person, and determines, in males and females, at the age of fourteen. This species of guardianship has become obsolete.

13. - 3. Guardian in socage, has the custody of the infant's lands as well as his person. The common law gave this guardianship to the next of blood to the child to whom the inheritance could not possibly descend. This species of guardianship has become obsolete, and does not perhaps exist in this country; for the guardian must be a relation by blood who cannot possibly inherit, and such a case can rarely exist. 2 Wend. 153: 15 Wend. 631; 6 Paige, 390; 7 Cowen, 36; 5 John.66.

14. - 4. Testamentary guardians; these are appointed under the stat. 12 Car. II., above mentioned; they supersede the claims of any other guardian, and extend to the person, an real and personal estate of the child, and continue till the ward arrives at full age.

15. - 5. Guardians appointed by the courts, by virtue of statutory authority. The distinction of guardians by nature, and by socage, appear to have become obsolete, and have been essentially superseded in practice by the appointment of guardians by courts of chancery, orphans' courts, probate courts, and such other courts as have jurisdiction to, make such appointments. Testamentary guardians might, as those of this class, be considered as statutory guardians, inasmuch as their appointment is authorized by a statute.

16. - 6. Guardian ad litem, is pointed for the infant to defend him in an action brought against him. Every court, when an infant is sued in a civil action, has power to appoint a guardian ad litem when he has no guardian, for as the infant cannot appoint an attorney, he would be without assistance if such a guardian-were not appointed. The powers and duties of a guardian ad litem are confined to the defence of the suit. F. N. B. 27; Co. Litt. 88 b, note 16; Id. 135 b, note 1; see generally Bouv. Inst. Index, h. t.; Coop. Inst. 445 to 455.
-- Bouviers Law Dictionary
Legal Definition
A guardian is a person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property and rights of another person, who, for some peculiarity of status or defect of age, understanding or self-control, is considered incapable of administering his own affairs. Bass v. Cook, 4 Port (Ala.) 392; Sparhawk v. Allen, 21 N. H. 27; Burger v. Frakes, 67 Iowa, 460, 23 N. W. 746. A guardian is a person appointed to take care of the person or property of another. Civ. Code Cal. § 236. One who legally has the care and management of the person, or the estate) or both, of a child during its minority. Reeve, Dom. Rei. 311. This term might be appropriately used to designate the person charged with the care and control of idiots, lunatics, habitual drimkards, spendthrifts, and the like; but such person is, under many of the statutory systems authorizing the appointment, styled "committee," and in common usage the name "guardian" is applied only to one having the care and management of a minor. The name "curator" is given in some of the states to a person having the control of a minor's estate, without that of his person; and this is also the usage of the civil law. Classification, A testamentary guardian is one appointed by the deed or last will of the child's father; while a guardian by election is one chosen by the infant himself in a case where he would otherwise be without -one. A general guardian is one who has the general care and control of the person and estate of his ward ; while a special guardian is one who has special or limited powers and duties with respect to his ward, e. g., a guardian who has the custody of the estate but not of the person, or vice versa, or a guardian ad litem. A domestic guardian is one appointed at the place where the ward is legally domiciled; while a foreign guardian derives his authority from appointment by the courts of another state, and generally has charge only of such property as may be located within the jurisdiction of the power appointing him. A guardian ad litem is a guardian appointed by a court of justice to prosecute or defend for an infant in any suit to which he may be a party. 2 Steph. Comm. 342 Most commonly appointed for infant defendants; infant pinintiffs generally suing by next friend. This kind of guardian has no right to interfere with the infant's person or property. 2 Steph. Comm 343; Richter v. Leiby, 107 Wis. 404, 83 N. W. 694. A guardian by appointment of court is the most important species of guardian in modem law, having custody of the infant until the attainment of full age. It has in England in a man ner superseded the guardian in socage, and in the United States the guardian by nature also. The appointment is made by a court of chancery, or probate or orphans' court. 2 Steph. Comm. 341; 2 Kent, Comm. 226 A guardian by nature is the father, and, on his death, the mother, of a child. 1 Bl. Comm. 461; 2 Kent, Comm. 219. This guardianship extends only to the custody of the person of the child to the age of twenty-one years. Sometimes called "natural guardian," but this is rather a popular than a technical mode of expression. 2 Steph. Comm. 337; Kline v. Beebe, 6 Conn. 500; Mauro v. Ritchie, 16 Fed. Cas. 1171. A guardian by statute is a guardian appointed for a child by the deed or last will of the father, and who has the custody bath of his person and estate until the attainment of full age. This kind of guardianship is founded on the statute of 12 Car. II. c. 24, and has been pretty extensively adopted in this country. 1 Bl. Comm. 462 ; 2 Steph. Comm. 339, 340 ; 2 Kent, Comm. 224-226; Huson v. Green, 88 Ga. 722, 16 S. E. 255. A guardian for nurture is the father, or, at his decease, the mother, of a child. This kind of guardianship extends only to the person, and determines when the infant arrives at the age of fourteen. 2 Kent, Comm. 22l; 1 Bl. Comm. 461; 2 Steph. Comm 338; Mauro v. Ritchie, 16 Fed. Cas. Il7l; Arthurs' Appeal, i Grant Can. (Pa.) 56. Guardian in chivahy. In the tenure by knight's service, in the feudal law, if the heir of the feud was under the age of twenty-one, being a male, or fourteen, being a female, the lord was entitled to the wardship (and marriage) of the heir, and was called the "guardian in chivalry." This wardship consisted in having the custody of the body and lands of such heir, without any account of the profits. 2 Bl. Comm. 67. Guardian in aocaae. At the common law, this was a snecies of guardian who had the custody of lands coming, to the infant 'Ey descent, as nishiof the infant's -person."until the latter macHea-the age of fourteen. Such guardian was alleys "the next nr kin-to whom the inheritance cnnnut baihiV descend." 1 BlAComm. 46l ; 2 StepE. Comm. 338 ; Byrne v. Van Hoesen, 5 Johns. (N. Y.) 67; Van Doren v. Everitt, 5 N. J. Law, 462, 8 Am. Dec. 615; Combs v. Jackson, 2 Wend. (N. Y.) 157, 19 Am. Dec. 568. Natural guardian. The father of a child, or the mother if the father be dead.
-- Black's Law Dictionary
Legal Definition
One appointed by a court to take charge of a person, his property or both. See 67 Iowa, 460, 23 N. W. 746, 25 N. W. 735.
-- Ballentine's Law Dictionary