A
legal guardian is a person who has the legal authority (and the corresponding duty) to care for the personal and
propertyProperty is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
interests of another person, called a ward. Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or
disabilityA disability may be physical, cognitive, mental, sensory, emotional, developmental or some combination of these.Many people would rather be referred to as a person with a disability instead of handicapped...
. Most countries and states have laws that provide that the
parentA parent is a caretaker of the offspring in their own species. In humans, a parent is of a child . Children can have one or more parents, but they must have two biological parents. Biological parents consist of the male who sired the child and the female who gave birth to the child...
s of a
minorIn law, a minor is a person under a certain age — the age of majority — which legally demarcates childhood from adulthood; the age depends upon jurisdiction and application, but is typically 18...
child are the legal guardians of that child, and that the parents can designate who shall become the child's legal guardian in the event of death.
CourtA court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
s generally have the power to appoint a guardian for an individual in need of special protection. A guardian with responsibility for both the personal well-being and the financial interests of the ward is a
general guardian. A person may also be appointed as a
special guardian, having limited powers over the interests of the ward. A special guardian may, for example, be given the legal right to determine the disposition of the ward's property without being given any authority over the ward's person. A guardian appointed to represent the interests of a person with respect to a single action in litigation is a guardian
ad litemAd litem is a term used in law to refer to a party appointed by a court to act in a lawsuit on behalf of another party—for instance, a child or an incapacitated adult—who is deemed incapable of representing him or herself...
.
Some jurisdictions allow a parent of a child to exercise the authority of a legal guardian without a formal court appointment. In such circumstances the parent acting in that capacity is called the natural guardian of that parent's child.
United States
Guardians
ad litemAd litem is a term used in law to refer to a party appointed by a court to act in a lawsuit on behalf of another party—for instance, a child or an incapacitated adult—who is deemed incapable of representing him or herself...
are often appointed in
divorceDivorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
cases or in parenting time disputes to represent the interests of the
minor childrenIn law, a minor is a person under a certain age — the age of majority — which legally demarcates childhood from adulthood; the age depends upon jurisdiction and application, but is typically 18...
. Guardians ad litem are also used in other family matters involving grandparents obtaining custody or grandparenting time as well as protection orders where one parent is attempting to get an order against another party with a legal connection to the mother of the child. The kinds of people appointed as a guardian ad litem vary by
stateThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
, ranging from volunteers to social workers to regular
attorneysA lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
to others with the appropriate qualifications. The two divorcing parents are usually responsible for paying the fees of the guardian ad litem, even though the guardian ad litem is not responsible to them at all. In some states, the county government pays the fee of that attorney. The guardian ad litem's only job is to represent the minor children's best interests.
Guardians ad litem are also appointed in cases where there has been an allegation of
child abuseChild abuse is the physical, sexual, emotional mistreatment, or neglect of a child. In the United States, the Centers for Disease Control and Prevention and the Department of Children And Families define child maltreatment as any act or series of acts of commission or omission by a parent or...
,
child neglectChild neglect is defined as:# "the failure of a person responsible for a child’s care and upbringing to safeguard the child’s emotional and physical health and general well-being"...
,
PINSPersons in need of supervision is a term frequently used by social services agencies in the United States to describe a juvenile who is not currently in the household of a parent or legal guardian, or is currently not under their control as evidenced by the person's status offense, who is not an...
,
juvenile delinquencyJuvenile delinquency is participation in illegal behavior by minors who fall under a statutory age limit. Most legal systems prescribe specific procedures for dealing with juveniles, such as juvenile detention centers. There are a multitude of different theories on the causes of crime, most if not...
, or
dependencyThe section about substance dependence in the Diagnostic and Statistical Manual of Mental Disorders does not use the word addiction at all. It explains:...
. In these situations, the guardian ad litem is charged to represent the best interests of the minor child which can differ from the position of the state or government agency as well as the interest of the parent or guardian. These guardians ad litem vary by
jurisdictionJurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
and can be volunteer
advocateAn advocate is a term for a professional lawyer used in several different legal systems. These include Scotland, South Africa, India, Scandinavian jurisdictions, Israel, and the British Crown dependencies of Jersey, Guernsey and the Isle of Man...
s or attorneys.
They are also appointed in guardianship cases for adults (see also conservatorship). For example, parents may start a guardianship action to become the guardians of a developmentally disabled child when the child reaches the
age of majorityThe age of majority is the threshold of adulthood as it is conceptualized in law. It is the chronological moment when minors cease to legally be considered children and assume control over their persons, actions, and decisions, thereby terminating the legal control and legal responsibilities of...
. Or, children may need to file a guardianship action for a parent when the parent has failed to prepare a power of attorney and now has dementia.
Guardians ad
litem can be appointed by the court to represent the interests of mentally ill or disabled persons. The
Code of VirginiaThe Code of Virginia is the statutory law of the U.S. state of Virginia, and consists of the codified legislation of the Virginia General Assembly. The 1950 Code of Virginia is the revision currently in force...
requires that the court appoint a "discreet and competent attorney-at-law" or "some other discreet and proper person" to serve as Guardian ad litem to protect the interests of a person under a disability.
England and Wales
Guardians ad litem are employed by
Children and Family Court Advisory and Support Service (CAFCASS)The Children and Family Court Advisory and Support Service is a non-departmental public body for England and Wales set up to safeguard and promote the welfare of children involved in family court proceedings...
, a
non-departmental public bodyIn the United Kingdom, a non-departmental public body —often referred to as a quango—is a classification applied by the Cabinet Office, Treasury, Scottish Government and Northern Ireland Executive to certain types of public bodies...
, to represent the interests of children in cases where the child's wishes differ from those of either parent, known as a Section 9.5 case. The posts are filled by senior social workers with experience in family law proceedings.
Estates and Financial Decision-making
Guardians
ad litem are sometimes appointed in probate matters to represent the interests of unknown or unlocated heirs to an estate.
A guardian is a
fiduciary and is held to a very high standard of care in exercising his or her powers. If the ward owns substantial property the guardian may be required to give a
surety bondA surety bond is a promise to pay one party a certain amount if a second party fails to meet some obligation, such as fulfilling the terms of a contract...
to protect the ward in the event that dishonesty or incompetence on his or her part causes financial loss to the ward.
Depending on the jurisdiction, a legal guardian may be called a
conservator,
custodianThe term Custodian may refer to:* Janitor, a person who cleans, maintains, provides security and initiates repairs or makes minor repairs to buildings.* Custodian bank, an organization responsible for safeguarding a firm's or individual's financial assets...
, or curator. Many jurisdictions and the
Uniform Probate CodeThe Uniform Probate Code is a uniform act drafted by National Conference of Commissioners on Uniform State Laws governing inheritance and the decedents' estates in the United States...
distinguish between a "guardian" or "guardian of the person" who is an individual with authority over and fiduciary responsibilities for the physical person of the ward, and a "conservator" or "guardian of the property" of a ward who has authority over and fiduciary responsibilities for significant property (often an inheritance or personal injury settlement) belonging to the ward. Some jurisdictions provide for public guardianship programs serving incapacitated adults or children.
Germany
The German guardianship law has been completely changed in 1990. Guardianship was renamed into care-taking (Betreuung). When a person of full age who, as a result of mental disease or physical, mental or psychological handicap is incapable of managing his own affairs, a guardian can be appointed (article 1896 Civil Law). An adult guardian is responsible for personal and estate matters, as well as medical treatment. However, the ward has full capacity with all human rights like marrying, voting or making a will. Every guardian has to report annually to the guardianship court (Betreuungsgericht).
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