Caring for Individuals with Disabilities: Exploring Guardianship

Author: Thomas C. Weiss
Published: 2014/06/05 - Updated: 2024/03/04
Publication Type: Instructive / Helpful
Topic: Lawyers and Rights - Publications List

Page Content: Synopsis - Introduction - Main

Synopsis: Information regarding various types and responsibility issues when considering guardianship in relation to persons with disability. A 'Guardian of the Person', is appointed to make decisions concerning a ward's personal care, to include both medical and psychological treatment.

Introduction

A, 'guardian,' is a legally appointed surrogate decision maker and advocate who helps a, 'ward,' or person who has been determined to be incompetent or is a minor to make and communicate important decisions about their personal or financial affairs.

Main Item

Guardians have a fiduciary duty toward the ward, which means they have to make decisions in the best interests of the ward. When appointing a guardian, the Clerk of the Court enters an order setting forth the powers and duties of the guardian.

The order might limit the powers and duties of the guardian, depending on each ward's individual capacities. The Clerk's order should be consulted to determine the specific duties of the guardian. What follows are some basic guardianship duties.

Basic Duties of Guardianship

There are 3 types of guardianships: General Guardian, Guardian of the Person, and Guardian of the Estate. Each of these types of guardianships has specific duties. All types of guardians have to follow general guardianship principles. Guardians are Required To:

• Involve the ward in every decision to the greatest extent possible.
• Ensure the guardianship is tailored in order to meet the actual needs of each ward.
• Support the ward in the development of necessary skills to assume responsibility for their own decision making.
• Make decisions that ensure the health and well-being of the ward based on what the ward would decide if they were capable of making the decision.
• Ensure the guardianship is reviewed periodically and consider alternatives to guardianship, to include restoration to competency or limited guardianship.
• Pursue information concerning the ward's wishes, value system, and needs from the ward, the ward's family members and friends, or legal documents such as a Living Will.
• Provide the ward with opportunities to exercise their rights that are within their judgment and comprehension, permitting the ward to same potential for error as a person who is competent.

The Duties of a Guardian of the Person

A, 'Guardian of the Person,' is appointed to make decisions concerning a ward's personal care, to include both medical and psychological treatment. The duties include a number of things such as taking custody of the ward's person and making provisions for the care, comfort and maintenance of the ward. A guardian of the person takes any responsible action needed to protect the ward from further mistreatment in instances where the guardian learns the ward is being mistreated.

A guardian of the person arranges for the training, education, habilitation, employment, or rehabilitation of the ward. They take reasonable care of the ward's clothing, vehicles, furniture and other personal items. The guardian establishes the ward's place to live, giving preference to places within the state and places that are not treatment facilities. If the only appropriate place for the ward to live is a treatment facility, the guardian of the person gives preference to facilities that are based in the ward's community.

Providing the consent or approval needed to enable the ward to receive legal, medical, psychological, or other types of professional care, treatment, counseling, or services is another duty of a guardian of the person. The guardian honors any written advance instructions for the medical or mental health care of the ward. The guardian has the duty to obtain expert consultation in any instances where there is a question about appropriate medical or psychological treatment or whether treatment should be provided.

Providing any other type of approval or consent on the behalf of the ward that is required, or is in the ward's best interest is another duty of the guardian. Arranging for regular medical and dental examinations for the ward as needed or required is as well. Presenting status reports as required by state law or the Clerk's order, as well as turning over the ward's personal effects to the administrator or executor of the ward's estate upon the death of the ward are additional duties of the guardian of the person.

The Duties of a Guardian of the Estate

A Guardian of the Estate is appointed in order to collect, preserve, manage, and use a ward's estate to administer the estate in a ward's best interest. The guardian's duties might be modified by the Clerk to provide some financial responsibility to the ward in a limited guardianship. The specific duties of a guardian of the estate include several things such as:

• Protecting the ward's assets against damage or loss.
• Voting shares of stock or other securities in person or by proxy.
• Taking possession of the ward's entire estate for the ward's use.
• Paying sums charged to or accruing against securities owned by the ward.
• Acquiring and retaining every kind of the ward's investments and property.
• Using the guardian's expertise or skills in the management of the ward's estate.
• Refusing to complete contracts as determined to be in the ward's best interests.
• Completing performance of contracts entered into by the ward that continue as obligations of the ward or the ward's estate.
• Abandoning or relinquishing the ward's rights in any property when the guardian determines the property is valueless or of no benefit or value to the ward or the ward's estate.
• Foreclosing any mortgage, deed of trust or other lien, bidding on such property at foreclose sale, acquiring such property by deed from the mortgagor without foreclose, retaining such property taken over without foreclose.
• Observing the standard of care and judgment under the circumstances that an ordinarily prudent person would observe in acquiring, reinvesting, exchanging, retaining, selling, as well as managing the ward's property.
• Collecting and receiving assets due to the ward from all sources.

Actions Guardians are Prohibited to Take

Guardians have a great amount of power in a ward's life. There have been reports of guardians abusing the power they have over people with disabilities, something everyone needs to be aware of. There are some actions guardians are prohibited from taking in relation to the wards in their care.

Guardians may not use a ward's personal or real property for anything or anyone else other than the ward. They may not intermingle the ward's money with their own personal funds, or appear on any of the ward's accounts as a joint account holder or payee upon the death of the ward. Guardians are also prohibited from borrowing money from their ward. Guardians are also prohibited from:

Guardians are Prohibited From:

• Disbursing the ward's funds to themselves.
• Leasing the ward's land for more than 3 years.
• Writing checks for cash without authorization from the court.
• Loaning the ward's money to another person without an order from the court.
• Paying themselves a commission or reimbursement without approval from the court.
• Using a minor ward's funds for the education and maintenance of the ward without permission from the court.
• Selling the ward's personal or real property without a court order when the aggregate value of items sold is greater than $1,500.

Guardians are prohibited to fail to deliver a minor ward their property when the ward turns 18 years of age as well. Consenting to sterilization of the ward without medical necessity and approval from the court is also prohibited. Guardians who fail to treat their guardianship in good faith may find themselves facing a mandatory removal by the Clerk for failure to protect the ward's interests.

Mandatory Removal of a Guardian

Guardians who fail to take their guardianship seriously and act in the best interests of their ward, pursuing actions that harm their ward, may find a petitioner pursuing their mandatory removal. A petitioner has the ability to initiate the mandatory removal of a faithless guardian. If the petitioner proves grounds for the removal of a guardian, the Clerk will be required to remove the guardian or take other actions to protect the ward and the ward's interests. Grounds that can find a guardian being removed include the following:

• Wasting the ward's money.
• The likely insolvency of the guardian.
• The guardian has been convicted of a felony.
• The guardian is likely to move out of the state.
• The guardian fails to file the required accountings with the Clerk.
• The guardian no longer meets the qualifications to be a guardian.
• The Clerk finds the guardian unsuitable to continue serving for any reason.
• The guardian was originally unqualified when appointed and remains unqualified.
• The guardian fails to post, renew, or increase bond as required by law or the court.
• Using the ward's money for the guardian's benefit or any person other than the ward.
• Failing to care for or maintain the ward or the ward's dependents in an acceptable manner.
• The guardian has been adjudicated incompetent and has not been restored to competence.
• The guardian's original appointment was made on the basis of a false representation or mistake.
• The guardian has a private interest that might interfere with their ability to carry out their duties as a guardian.
• The guardian is the ward's spouse and has lost their spousal rights through separation, divorce, annulment or abandonment.

A guardian may also be mandatory removed for not being a resident of the ward's state, or failure to obey any citation, notice, or process served on them. Other types of guardian removal also exist. These types of removal include Permissive Removal and Emergency Removal.

Permissive Removal of a Guardian

The Clerk has the authority to remove a guardian if a petitioner proves the removal would be better where management of the ward's estate, general guardianship, or guardianship of the ward's estate, or for the better care and maintenance of the ward and the ward's dependents is concerned. As an example; a change of guardian would most likely be better for a ward's care and maintenance if the ward moves to a location across the state from their current guardian. Due to the fact that these are grounds for permissive removal, the Clerk has the authority to remove a guardian or take other actions, yet is not required to do so.

If the Court Clerk finds reasonable cause to believe there is an emergency that threatens the physical well-being of a ward, or of causing substantial injury to the ward's estate, the Clerk might order the emergency removal of a guardian without a hearing.

Author Credentials: Thomas C. Weiss is a researcher and editor for Disabled World. Thomas attended college and university courses earning a Masters, Bachelors and two Associate degrees, as well as pursing Disability Studies. As a CNA Thomas has providing care for people with all forms of disabilities. Explore Thomas' complete biography for comprehensive insights into his background, expertise, and accomplishments.