Guardianship

Guardianship is a legal process that transfers decision-making authority over an individual (a ward) deemed incapable of managing his or her personal or financial affairs to another person (the guardian). Guardians may be appointed for both minors and adults.

Modern guardianship has its roots in English common law, a legal system which England then transported to its colonies. Under English common law, the doctrine of parens patriae (parent of the country) allowed the courts to assume control of and appoint guardians for infants (minors) and incompetents (incapacitated adults). While the details and terminology vary, guardianship is found not only in the United Kingdom, but also in the United States, Canada, and Australia. In addition, guardianship has been adopted in other countries, such as Japan, whose legal systems are not generally based on the law of England.

In the United States today, state law controls the appointment of guardians, and guardians are appointed by state courts. Because each state is free to enact its own laws, state guardianship laws vary, even on basic terminology. Under the Uniform Guardianship and Protective Proceedings Act, a model act in effect in about one-third of the states, a guardian makes personal-care decisions, while a conservator manages property. But in many other states, the court-appointed manager is referred to as either a guardian of the person or a guardian of the property.

States also vary on procedures for the appointment of guardians. Procedures for appointment of a guardian of a minor are different from and generally less detailed than procedures for an adult appointment. Procedures for minors are less detailed because the incapacity of a minor is presumed, while the incapacity of an adult must be proved.

There are numerous alternatives to guardianship, although many relate only to adults and not to minors. Advising individuals on these alternatives is a major function for professionals such as attorneys and social workers, who counsel individuals on planning for possible incapacity.