What Are the Responsibilities of a Guardian?
Adults routinely make choices about finances, where to live, and medical care, which are some of the hallmarks of authority people receive upon reaching the age of majority. Retaining this power requires a person have the cognitive and/or physical ability to tend to their affairs in a reasonable manner. When this is no longer the case, usually through illness, injury, or general mental decline, a guardianship may be necessary to look after an individual’s interests. The authority delegated to this person, or in certain cases an entity, can vary from quite narrow to all aspects of an impaired individual’s life. Thus, closely scrutinizing what the person really needs, and how best to achieve it, should be the goal of every guardianship petition. Guardians perform an important function, and exist to protect the interests and rights of people who need help. Unfortunately, the public perception of guardians has taken a negative turn in recent years, and while corrections were needed, the majority of guardians try to perform their duties with integrity and good intent. Because of the higher level of scrutiny guardians are under, it is even more important to understand the duties and obligations this role entails to avoid potential liability claims. A discussion of the law governing the exercise of guardianship powers will follow below.
What Guardianship Means
Guardianship is a court-supervised process that delegates rights and authorities normally exercised by legal adults to a third party because that adult is no longer able to competently perform these functions. A prerequisite to approving a guardianship is that the person be declared legally incapacitated by a panel of three medical and mental health professionals. Assuming a person is found partially or totally incapacitated, the court will appoint a private or professional guardian to oversee the person’s property and/or personal affairs. The court is supposed to look to the least restrictive alternative when granting these petitions, as they involve taking away a person’s fundamental rights, such as the right to sue, marry, contract, make medical decisions, and decide where to live.
The Duties and Powers of the Guardian
The duties and obligations a guardian must follow are significant and serious, and anyone considering appointment to this role really needs to understand what is involved to ensure he/she is truly equipped to perform it. First and foremost, the guardian is acting as a fiduciary, a position of trust, on behalf of the incapacitated person, or ward, according to the authority granted by the court. Thus, the guardian cannot exercise authority beyond what the court grants, which is a boundary guardians need to be cognizant of at all times. Further, guardians must act in the best interests of the ward, and owe him/her a duty of loyalty. This means all decisions need to be made to support the welfare of the ward, and requires the guardian to refrain from creating conflicts of interests while serving in this role. This means guardians in charge of a ward’s property must invest it prudently, and if in charge of a person, must comply with the following:
- Consider the ward’s expressed desires when known;
- Allow continuing contact with family and friends, unless it would cause the ward harm;
- Only restrict the ward’s liberty to the extent necessary to protect their health and safety;
- Help the ward to regain capacity if possible; and
- Make provisions for the ward’s mental, medical, rehabilitative, or personal care services, among others.
These requirements highlight the large demands the law places on a guardian, which is the primary reason having an experienced guardianship attorney to consult about these matters is so crucial to avoiding legal liability for a breach of these duties.
Seek Legal Advice
Guardians serve a vitally important function, but must assume a large amount of responsibility to complete it. The legal requirements to exercise this power are numerous, and difficult to fully understand and follow for the average person. The attorneys at the Fort Lauderdale law firm of Joyce A. Julian, P.A. understand the demands placed on guardians, and are here to help you navigate and stay in compliance with this technical process. Contact us for a free consultation.