Guardian and Ward

Generally, a guardian acts as guardian of both the person and the property of the ward, but in some circumstances these duties are split. When acting as guardian of the person, a guardian is entitled to custody and control of the ward. Some statutes make a specific exception when a child has a living parent who is suitable to provide daily care. The guardian then manages the child's property, and the parent retains custody. The rights and responsibilities associated with the child's daily care belong to the parent, but the guardian makes major decisions affecting long-term planning for the minor.

A guardian of the person of a child can prevent certain people from seeing the ward, but a court will not allow unreasonable restrictions. A guardian also has the right to move to a different state with the child, but can be required to appear in court prior to relocation and give assurances regarding the child's care. A guardian has the duty to provide for the child's support, education, and religious training. Courts permit a guardian to use income and interest earned by the child's assets to pay for the child's needs, but they are reluctant to permit the guardian to spend the principal. A parent is primarily responsible for the support of a child, so when a parent is living, his or her money must be used before the child's resources are spent. The child has a right to receive all of his or her property upon reaching the age of majority, unless restrictions are imposed by a will or a trust instrument.

A general guardian or a guardian of the property is considered a fiduciary—a person who occupies a position of trust and is legally obligated to protect the interests of the ward in the same manner as his or her own interests. A guardian cannot invest the ward's money in speculative ventures, agree not to sue someone who owes the ward money, or neglect legal proceedings, tax bills, or the maintenance of land, crops, or buildings that are part of the ward's estate. In addition, a guardian cannot allow someone else to maintain a business that the ward inherited or permit someone else to hold on to property belonging to the ward, without supervising such transactions. A guardian must earn income from the ward's property by making secure investments.

A guardian must take inventory and collect all the assets of the ward. Where permitted by law, title is taken in the ward's name. Otherwise, the guardian owns the property "as guardian" for the ward, which indicates that the guardian has the legal right to hold or sell the property but must not use it for his or her personal benefit. The guardian must determine the value of the property and file a list of assets and their estimated value with the court. The guardian must collect the assets promptly, and is liable to the ward's estate for any loss incurred owing to a failure to act promptly.

In general, a guardian does not have the authority to make contracts for the ward without specific permission from the court. If the child is party to a lawsuit, a guardian cannot assent to a settlement without first submitting the terms to the court for approval. A guardian must deposit any money held for the ward into an interest-bearing bank account separate from the guardian's own money. A guardian is also prohibited from making gifts from the ward's estate.

Generally, a guardian cannot tie up the ward's money by purchasing real estate, but can lend the money to someone else buying real estate if the property is sufficient security for the loan. A guardian cannot borrow money for personal use from the ward's estate. A guardian can lease property owned by the ward, but ordinarily the lease cannot extend beyond the time the ward reaches the age of majority. A guardian cannot mortgage real property or permit a lien on personal property of the ward. A guardian can sell items of the ward's personal property, but must receive the permission of the court to sell the ward's real estate.

At the end of the guardianship period, a guardian must account for all transactions involving the ward's estate. The guardian is usually required to file interim reports periodically with the court, but a final report must be filed and all property turned over to the ward when the ward has reached the age of majority. If the guardian has not managed the property in an ethical manner, the ward, upon reaching adulthood, may sue for waste, conversion, or EMBEZZLEMENT. If the management of the ward's assets was not illegal but resulted in losses, the guardian must reimburse the ward. If the guardian has managed the assets correctly, the guardian is entitled to be paid out of the ward's estate for his or her services.

Finally, whenever a guardian participates in a lawsuit for the ward, he or she sues or is sued only "as guardian,"and not personally. For example, if the ward sues a physician for MALPRACTICE and recovers damages, the money does not belong to the guardian even though he or she initiated the lawsuit for the ward. In the same way, if someone obtains a judgment for damages against the ward, the money must come from the ward's property, not from the guardian. If both the guardian and the ward are parties in one lawsuit, the guardian participates in the action as both a guardian and an individual.