As discussed in our companion web article, The Basic Law on Guardianship, the guardian is a person appointed to make decisions for someone else when that person is unable to do so. The reader should review that article before reading further.
A guardian may be removed if a court determines that the ward no longer needs the services of the guardian. Also, a guardian may be removed when he or she has not provided adequate care for the ward or when it is determined that the guardian is guilty of neglect. Neglect can include using the ward’s money or property for the guardian’s own benefit and not obeying court orders. Upon court order, the guardian will be removed and a new guardian (or temporary guardian) will be substituted in place of the original guardian.
Given the central role of the guardian, it is not uncommon for wards and guardians to become engaged in disputes. This article shall outline some of the basic areas of typical disputes and procedures for resolving said disputes.
WARD AND GUARDIAN TRANSACTIONS
The relationship between the guardian and the ward is one requiring a fiduciary duty on the part of the guardian similar to that of a trustee. During the existence of the relation, the guardian and the ward are generally prohibited from entering into a contract with each other. Therefore, any sale by the ward to the guardian while such relation continues, including transactions entered into between them after the guardianship dissolves, will be closely scrutinized. If a transaction between the ward and the guardian is to be validated it must have been made in good faith and without any undue influence or advantage taken of the ward. If the transaction is without good faith, it will be set aside. However, transactions that take place after the relationship between the guardian and the ward has been entirely dissolved, and all accounts are settled after the coming of age of the ward, or the ward regains full competency, will be considered binding.
ACCOUNTINGS AND COMPENSATION OF GUARDIANS: LIABILITIES OF GUARDIAN TO WARD
Guardians are allowed reasonable compensation for their services. A debt owed by the guardian to the estate of the ward will be treated by the court as belonging to the estate of ward. A release of the guardian by the ward will be set aside if there is any element of unfairness or undue advantage taken by the guardian.
When a minor ward attains the age of majority or dies, or an incapacitated ward regains the ability to manage his/her affairs, the guardianship does not automatically terminate. The guardian must file a final return and petition the court to be dismissed as guardian. The final return and petition for dismissal will allege that the guardian has completed his/her service in full compliance with the law and has turned over all remaining property to the ward or to the personal representative of the estate of the deceased ward. However, the guardian of a ward who dies intestate becomes the administrator of the estate by right of office. S/he must conclude the affairs of the estate before being dismissed, unless a personal representative for the decedent’s estate is appointed by the court.
At said hearing any interested person, including the ward, may object to the accounting or the discharge and ask the court for relief. Courts normally scrutinize the accounting closely and can conduct fact finding hearings should the court determine it is necessary. Normally, both the guardian and the ward are represented by counsel in such hearings.
Guardians are allowed to recover and reimburse themselves for expenses incurred in connection with their services as guardians. Guardians are also entitled to certain commissions received from the ward’s guardianship estate as compensation for the guardian’s service. However, reimbursable expenses do not include expenses incurred by a guardian in carrying out actions related to natural affection. Reimbursable expenses include transportation costs, out-of-town lodging and meals, and other costs, losses and expenses actually incurred by the guardian. The commissions payable to guardians of the property are computed in accordance with allowances set by law. Guardians who unreasonably fail or refuse to file returns with the court forfeit the right to commissions for the year covered by the return. Moreover, guardians removed by the Court for mismanagement are not entitled to receive commissions.
The guardian can sue in the name of the ward. A guardian can only be sued in the court in which s/he was appointed. A judgment against a guardian in his/her representative capacity binds the estate of the ward but does not bind the guardian or the ward personally.
In his/her representative capacity, the guardian will be liable for necessaries furnished to the ward by third parties when s/he neglects or refuses to supply the ward with such necessaries. The guardian alone will be personally liable when s/he makes a contract in excess of his/her authority. Note, however, that the guardian can require the ward to work and apply the proceeds for the necessities of life of the ward.
TYPES OF PERSONAL DECISIONS OF GUARDIAN FOR THE WARD
The court may give the guardian authority to make personal decisions for the ward, including providing informed consent for health care and medication. This type of guardian is a “guardian of the person.” The court also can give the guardian authority to manage the ward’s money and property. This type of guardian is a “guardian of the estate.”
A guardian of the estate is required to:
• provide the ward with the greatest amount of independence and self-determination with respect to property management in light of the ward’s impairment;
• consider the ward’s personal preferences and desires;
• take any action that is the least restrictive form of intervention;
• use the judgment and care that persons of prudence, discretion, and intelligence exercise in managing their own affairs;
• use the ward’s income and property to maintain and support the ward and any of the ward’s dependents;
• determine if the ward executed a will and/or trust and, if so, the will or trust’s location and the appropriate persons to be notified of the ward’s death;
• upon the ward’s death, deliver the ward’s assets to the entitled persons;
• file a sworn statement with the register of deeds of any county in which the ward possessed real property, describing the property and the date the ward was determined to be incompetent;
• notify the court of any change of address of the guardian or the ward; and
• perform other duties as required by the court.
If not limited by the court, the guardian has authority to take the following actions without prior court approval:
• support another individual whom the ward is legally obligated to support;
• enter into a contract on behalf of the ward;
• exercise the ward’s options to purchase securities or other property;
• authorize access to or release of the ward’s confidential financial records;
• apply for public and private benefits on the ward’s behalf;
• pay the ward’s legally enforceable debts, including any taxes owed;
• retain real or personal property that the ward already possesses or acquires by gift or inheritance during the tenure of the guardian;
• settle the ward’s claims and accounts; and
• appear for and represent the ward in actions such as court hearings.
In their role guardians are normally required to attempt to facilitate the independence and self-reliance of the ward. The guardian is presumably only granted those powers necessary for the ward to accomplish what s/he cannot accomplish independently. The powers may include assuring the availability and maintenance of care for the ward and ensuring that educational and medical services are maintained and adequate. A guardian is required to submit updates to the court as to the status of the ward and the guardian’s duties.
Should the guardian fail to provide the above services, or engage in any inappropriate conduct from self dealing to inappropriate reimbursement of expenses, the court is empowered on its own or by petition of any interested person to investigate, remove the guardian if warranted, and render judgments against the guardian.
Any interested party can petition for removal of the guardian. Since the ward is, by definition, incompetent, it is normally another family member or third party who seeks to obtain relief by removal of the guardian.
The hearing to challenge actions of the guardian or remove him or her is a fully noticed hearing before the Court with the right to call witnesses, cross examine witnesses, and argue the matter. Essentially, it is a trial in equity before the Court with the Court determining the appropriate action to take. Except in emergency situations, there are usually some months before the actual hearing occurs and during this time the parties prepare their arguments and evidence. The Court has broad discretion as to how to conduct the hearing and discovery and testimony of experts are usually allowed.
While a person is not required to be represented by counsel to appear at the hearing, it is recommended highly for this area of the law is complex and few laypersons have the legal knowledge and skill to confront experienced counsel in the art of cross examination, argumentation and legal briefing which is usually required in such hearings. Stating suspicions will not work: one must prove one’s case keeping in mind the rules of evidence that will be enforced by the Court. See our article on American Litigation.
One aspect of the hearing that must be borne in mind is that all interested parties are entitled to notice and to attend the hearing. When large families are involved, the hearing can become an extremely prolonged and complicated matter, with numerous attorneys representing numerous family members. This writer has been part of a hearing where there were so many attorneys representing so many family members that the Judge handled out numbers for the attorneys to hold for identification.
But many hearings take less than a day or two and are relatively efficient affairs with the Judge taking a very active role in determining the facts. The facts of the case, number of parties and amount in dispute normally determines the extent of the hearing.
Guardians are held to a high degree of fiduciary duty and their actions, like any fiduciary, require the highest level of ethical conduct. Any interested person may challenge inappropriate conduct and the guardian faces personal liability if he or she violates the standard of care or, more particularly, engages in conduct that does not benefit the ward.
Nevertheless, the Courts will grant the guardians broad discretion to act so long as they are not in a conflict of interest or self interested and the person challenging the conduct of the guardian must make sure that the dispute is not over disagreement as to mere method of care but is truly over a violation of fiduciary duty. The guardian was appointed because his or her opinion mattered to the court or the ward and the Court will give great deference to that opinion if there is disagreement.