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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, subject to the approval of the court.
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.
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.
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.
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.
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.
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 the voice of the child and may represent the child in court, with many judges adhering to any recommendation given by a GAL. 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.
Qualifications vary by state, ranging from no experience or qualification, volunteers to social workers to attorneys to others. The GAL's only job is to represent the minor children's best interest and advise the court. A guardian ad litem is an officer of the court and does not represent the parties in the suit. Training and qualifications vary from state-to-state.
Although a guardian ad litem working through a CASA program volunteers their services, some guardians ad litem are paid for their services. They must submit detailed time and expense reports to the court for approval. Their fees are taxed as costs in the case. Courts may order all parties to share in the cost, or the court may order a particular party to pay the fees.
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 home.
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.
Guardians ad litem are sometimes appointed in probate matters to represent the interests of unknown or unlocated heirs to an estate.
When a settlement is reached in personal injury or medical malpractice case involving claims brought on behalf of a minor or incapacitated plaintiff, courts normally appoint a guardian ad litem to review the terms of the settlement and ensure it is fair and in the best interests of the claimant. The settlement guardian ad litem thoroughly investigates the case, to determine whether the settlement amount is fair and reasonable.
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.
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).
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.