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Legal guardianship

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Legal guardianship

A legal guardian is a person who has the legal authority (and the corresponding duty) to care for the personal and property 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 disability. Most countries and states have laws that provide that the parents of a minor 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.

Courts 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 litem.

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.

Guardian ad litem

United States

Guardians ad litem (GALs) are not the same as 'Legal Guardians' and are often appointed in under-age-children cases, many times to represent the interests of the minor children. Guardians ad litem may be called, in some US states, Court Appointed Special Advocates (CASA). They are supposed to be the voice of the child and may represent the child in court, with many judges adhering to any recommendation given by a GAL. Because of their absolute power over the fate of the child and absolute trust by the court, in many states, GALs do not require the use of an attorney. Their recommendations are applied without research, evidence, or even talking to the child.[dubious ] GALs may assist where a child is removed from a hostile environment, usually by the (state) Department of Social Services, and in those cases may assist in the protection of the minor child. In some cases, the power of the GAL adversely affects a child because there are little, and in many states, no requirements for the qualifications of becoming a GAL. Even those who are qualified may harbor biased opinions or may not be objective in their view of a parenting situation, and may, instead of giving the child a voice, harm or endanger the child by forcing the child to live with an abuser.[dubious ]

Any person, with training and approval, and in some states with no training at all, may be appointed as a guardian ad litem. Qualifications vary by state, ranging from no experience or qualification, volunteers to social workers to attorneys to others. In many states, the GAL's only job is to represent the minor children's best interest and advise the court. In those states, the GAL speaks to the court for the child. In some states, however, the GAL is not just the voice of the child, but may instead assist in resolving conflict between parents, acting more as a mediator without giving the child a voice at all. In many states the GAL must go through training and course work to qualify for the responsibility of being the voice of a child. In some states there is no required training, and anyone can be labeled a GAL to testify to the court as to their opinion about what should happen to the child.

Although a Guardian ad Litem may volunteer their services, this is not always the case. Guardians ad Litem that work as lawyers and psychologists can charge the parents of a child hundreds of dollars per hour. The services of a GAL are not covered by insurance and come out of the pocket of the parent or legal guardian. If a GAL's focus is not the child, but is instead conflict resolution, a conflict of interest is created if the GAL is not a volunteer. Sometimes this can cost a parent thousands of dollars per year. Once a GAL is signed onto a case, it is nearly impossible in most jurisdictions to remove or change them.

Guardians ad litem are also appointed in cases where there has been an allegation of child abuse, child neglect, PINS, juvenile delinquency, or dependency. 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 jurisdiction and can be volunteer advocates or attorneys. For example, in North Carolina, trained GAL volunteers are paired with attorney advocates to advocate for the best interest of abused and neglected children. The program defines a child's best interest as a safe, permanent homes for children.[1]

Legal guardians may be 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 majority. 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 Virginia 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.[2]

England and Wales

Guardians ad litem are employed by Children and Family Court Advisory and Support Service (CAFCASS), a non-departmental public body, 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 bond 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", "custodian", or curator. Many jurisdictions and the Uniform Probate Code 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.

Situation in other countries

Germany

The German guardianship law was completely changed in 1990. Guardianship was renamed to '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 for medical treatment. However, the ward has full capacity with all human rights such as those to marry, vote or make a will. Every guardian has to report annually to the guardianship court (Betreuungsgericht).

Republic of Ireland

The court appointed guardian system in the Republic of Ireland was brought into law on the proposal of the noted gay activist and member of the Houses of Parliament, David Norris. The Children Acts Advisory Board which was set up to advise the ministers of the government on policy development under the Child Care Act 1991 was then abolished in September 2011. Judges are responsible for appointing child guardians and can choose guardians from Barnardo's a children's charitable service or from among the self-employed guardians, who are mostly former social workers who have gone into private business since the legislation.[3][4]

See also

References

External links

  • National Guardianship Association (USA)
  • Mental Capacity Act 2005 (England and Wales)
  • USA
  • German guardianship law (english translation)
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