Guardianship

We must keep in mind that a guardian is only appointed when the ward (the person with a guardian) has some disability. The disability might be mental or physical, or a combination of both. It could also be the “infirmities of old age.” However, it must be a disability that prevents him or her from managing their day to their affairs.

That is why the duties and powers of a guardian reflect the role that parents might play with respect to their child. In fact, Wyoming laws provide that the guardian of a minor has the powers and responsibilities of a parent who has not been deprived of custody of his minor child.

Some Powers are Also Duties of a Guardian

Just as parents have powers and duties towards their children, guardians are allowed and required to do the following:

1. Determine and facilitate the least restrictive and most appropriate and available residence for the ward – this means that the guardian cannot institutionalize a ward, if the ward could live in a group home, or on their own, with assistance.
2. Facilitate the ward’s education, social and other activities – a guardian needs to send the ward to school, if appropriate. Guardian should also take a senior ward to the senior center for Wii bowling, etc.
3. Authorize or expressly withhold authorization of medical or other professional care, treatment or advice, with some restrictions – make sure the ward receives appropriate medical care.
4. Take reasonable care of the ward’s personal property and commence protective proceedings if necessary.
5. Apply to the ward’s current needs for support, care and education as much of the money or property paid or delivered to the guardian as may be appropriate, and exercise due care to conserve excess funds for the ward’s future needs – in other words, make sure the ward is taken care of, but don’t blow their income.
6. Pay to the conservator excess funds at least annually.
7. Following the death of a ward, arrange for the final disposition of the ward’s remains according to the ward’s expressed wishes if known, if the immediate family is unavailable or unwilling to assume responsibility. For purposes of this paragraph, “immediate family” is defined as parents, spouse, grandparents, siblings and adult children.

Some Additional Powers of a Guardian

The following powers are not duties:

1. Receive money payable from any conservatorship for the support of the ward – if a conservator is supposed to pay money to the ward, he can pay it to the guardian.
2. Receive money or property of the ward and institute proceedings to compel the performance by any person of the duty to support or contribute to the support of the ward – if the ward is entitled to receive money from a trust or conservator, the guardian can file an action to make sure those moneys are not withheld.
3. Consent to the marriage or adoption of the ward – this is a biggie. A ward cannot be married without the consent of the guardian, but the guardian does not have to consent.

Miscellaneous Powers and Duties of a Guardian

Continuing on with the theme of a guardian as “parent” of the ward, there are a couple of additional provisions in the laws:

The guardian is not liable for injury to the ward resulting from the negligence or acts of third persons performed by authority given by the guardian for medical or other professional care, treatment or advice, unless it would have been negligent for a parent to have given that authority. In other words, take the ward to appropriate treatment providers, or you will be liable for any injuries they may suffer.

A Guardian may not use funds paid to the ward to pay themselves caretaker fees.

On the other hand, a guardian who is not a parent of the minor is not obligated to expend his own funds for the support of the ward, and

Unlike a parent, a guardian who is not the parent of a minor, is not liable to third persons for acts of the ward.

Some Powers of a Guardian Requiring Court Approval

Some powers of the guardian have a huge impact on the ward’s rights and liberties. Therefore, the ward must get approval from the Court before doing any of the following:

1. Commit the ward to a mental health hospital or other mental health facility.
2. Consent to electroshock therapy, psychosurgery, sterilization or other long-term or permanent contraception.
3. Relinquish the ward’s minor child for adoption, and
4. Execute any appropriate advance medical directives, including durable power of attorney for health care and an individual health care directive.

Conclusion

The powers and duties of a guardian with respect to the ward mimic the powers and duties a parent may have towards their child. A guardian assumes a great responsibility for another human being. Therefore, the decision to become a guardian should not be taken lightly.

By Steve Harton

There are three types of guardians for minor children. One is a regular guardianship,  where the guardian basically steps into the role of a parent for the child. Another is a temporary guardianship, where a parent is unavailable for a limited time, such as a deployment. The third is a temporary guardianship for educational, medical and dental care purposes. In this article, we will discuss the regular guardianship.

A guardian acts as the parent of the minor child

A guardian for a minor child will have similar rights toward the minor child as a parent would. More importantly, the guardian has similar responsibilities as a parent.

These are significant rights and responsibilities. That is why a guardian must be appointed by a Court. A guardianship cannot be created by a power of attorney, or some other such document.

The guardian’s role is so important in the life of a child, that the Court will supervise the guardian’s action. That is why the guardian must file a report with the Court on a regular basis.

Grounds for Appointing a Guardian

The natural guardian of a minor child is his or her parent. Generally, the Court will only appoint a guardian if the natural parent is unable, or unwilling, to take care of the child. Some situations where this might happen are when:

• a parent dies
• parents abandon their children
• one or parents have substance abuse issues
• parents suffer from mental illness
• a parent is in prison

Sometimes parents are just overwhelmed with financial, emotional, or other problems. Other parents are just irresponsible, and do not want to take care of their children.

Guardianship Process

Petition for Appointment of a Guardian

The process starts with the filing of a petition. The petition must state:

1. The name, age and address of the minor child,
2. The reasons why the child needs a guardian, (why the parents cannot take care of the child)
3. The name and address of the proposed guardian, and why they are a fit and proper person to serve as a guardian (they are a close relative/friend willing and able to care for the child)
4. The residence of the minor child,
5. The facts showing that it is in the best interest of the minor child to appoint a guardian’
6. The name and address of the person or facility currently having custody of the child, and
7. The interest of the petitioner (why they want to care for the child, and will they receive a benefit from caring from the child).

Notice of Petition

Notice of the petition must be served on the minor child’s parents, unless the Court excuses notice for good cause. This will happen in cases where one of the parents is absent, and has had little involvement in the life of a child. The court will also excuse notice when it would be really difficult to serve the parent.

Trial on the Petition to Appoint Guardian

Most guardianship petitions are granted without trial, because the parents do not object. They either consented to the guardianship, or the court excused service of notice, so they did not file an objection. However, the petitioner, and the custodian (parent) of the minor child can all request a jury trial on the petition, if they wish.

Burden of Proof on Appointment of Guardian

The Court will appoint a guardian, if it finds by a preponderance of the evidence that the minor child needs a guardian. This is not a real high level of proof. However, a court will generally only appoint a guardian if the parent consents, or if a parent is unfit to act as a parent.

It does not matter if the proposed guardian could provide a better lifestyle for the child because they have a nicer house and more money than the parent. If the parent is willing and able to provide reasonable care for the child, the guardianship will be denied.

The Appointment of a Guardian

If a guardian is appointed, the court’s order will include:

• The reasons why the child needs a guardian
• The person(s) appointed as guardian
• The duration of the appointment, and
• The duties of the guardian.

The duration is usually until the child reaches the age of eighteen (18) years of age. However, it is always subject to termination for good cause.

The duties of a guardian are set out by statue, and will require the filing of a guardian’s report every six months.

Conclusion

The guardian of a minor child will act as the parent of that child. The Court will only appoint a guardian if the parent of the child consents, or is found to be unwilling or unfit to act as the parent. Finally, guardianship is a big responsibility, and the guardian will supervise the guardian by requiring her to file reports with the Court.

By Steve Harton