Month: November 2015

Guardians and Probate Law

Appointment as legal guardian is a high position of trust, given by parental authority, spousal authority, by the court, or in some cases the minor (provided the minor is 14 and older). It is not easily used as a get-rich-quick scheme by the guardian, neither is does it give the guardian free rein to bully and order his or her ward around.

This negative view, or the responsibilities involved with being a guardian, may cause recommended guardians to turn down the post because of uncertainty. Guardians have their own duties, their own families in some cases, and may not be willing to take on added responsibility. In addition, they may not be willing to risk being sued for negligence if anything happens to harm the minor or the minor’s property currently in their hands.

The Rights and Immunities of Guardians (of Minors)

Article II, Section 209 of the Uniform Guardianship and Protective Proceedings Act of 1998 lays out the rights and immunities of the guardians of minors. First, a guardian is not required to spend personal resources on behalf of his or her ward. However, if the guardian does so, he or she is “entitled to reasonable compensation.”

Second, the guardian cannot be held accountable to a third party for what the ward does. He or she is a guardian, not a parent, and his or her legal responsibility is to watch over the well-being of the minor. Third, since the guardian is legally able to sign consent forms for medical and other services, he or she cannot be held accountable for the actions of the doctors, personnel, staff, and so forth who are in charge of the minor at certain times.

With all of those provisions in place, it may feel like the role of a guardian is quite easy. However, even with all of those provisions in place, a guardian may still be brought to court for misuse of the minor’s funds, and for negligence directly causing harm to the minor or the minor’s property currently in trust with the guardian. Misuse of the minor’s funds is an obvious offense. Here, we shall focus on negligence.

What is Negligence in the Legal Sense?

Negligence is under the Tort Laws of the United States. A “tort” is a civil wrong done by one person to another that causes them unfair suffering or harm. There are two general kinds: harm through negligence, which can basically be called carelessness, and intentional harm.

Negligent harm occurs when the ward, in this case the minor, is injured in a situation that was avoidable, but allowed to occur by the guardian. The more knowledge the guardian has, or could have had, about the situation, the more likely he or she can be convicted for negligence of his or her ward.

There are 4 elements that must be present for a guardian to be convicted of negligence. First, he must have a relationship with the ward that puts him in a guardian’s position. Second, the guardian fails to fulfil his duties as such. Third, the victim suffers harm as a direct consequence of the guardian’s failure. Fourth, it should be clear to the courts that it was the failure of the guardian that caused the injury.

Examples of Negligence

Say, for example, that the minor (below 14) wishes to go on a boating trip with other family members, and asks the guardian for permission. The guardian studies the laws and statistics on minors in boating, makes sure the minor is bringing the correct life jacket and gear for boating, researches the boating company, talks to the pilot of the boat, and goes on the trip himself. If the boat tips over, and child and guardian end up in the water,

On the other hand, say the guardian is also placed in charge of the residential property of the ward. The finances he or she is in charge of also covers the upkeep and security of the property. Given that 4 or more houses are burglarized every minute, the guardian should especially maintain the property’s security. However, if he neglects to have a lock replaced or a CCTV repaired, and the house gets burglarized, he may be held liable for negligence. There are other ways to protect with things such as dogs and wireless dog fences.

The Responsibility of the Probate Courts

The probate courts, in charge of approving and appointing guardians when needed, have a heavy responsibility towards minors under guardianship. As much as possible, they should choose guardians who will not become liable for negligent harm to their wards.

The Protection of Minors

An important responsibility of the probate courts is the guardianship of minor (under the age of majority) beneficiaries and inheritors of estates under a decedent’s (legal term for deceased) will. The minors cannot administer the estates until they reach the age of majority, so the responsibility falls to the guardian. In the cases when the decedent dies intestate (without a will), the court can appoint a guardian they find fit to take care of the minor (or minors).

Under What Law Are Minors Protected?

The laws vary per state in the probate courts, so this section will only look at the Uniform Guardianship and Protective Proceedings Act of 1998. It is one of the Uniform Laws, recommended for approval by all states, and is considered part of the Uniform Probate Code when a state probate court is using the Code for administration of an estate.

The law provides for the guardianship of minors, or unemancipated children under the age of 18. The guardian can only be appointed by the parent or by the court. The responsibility of the court is heavy, since the guardian also holds the funds provided for care of the minor. A wrong choice could be disastrous for all involved.

Rights of the Minor

A minor over 14 years of age is allowed to petition the court for appointment of a guardian even after a parent has appointed one. The parental appointee is prioritized, but the court may take the minor’s requested guardian instead.


If the minor is over 14 years of age, he or she can also file an objection to the guardian placed over him or her. If the guardian is appointed by the minor’s parent, the probate court may allow the appointment may stand despite the objection. If the court is willing to accommodate the objection, a temporary guardian may be appointed.

Duties of the Guardian

The guardian must know how the minor is doing generally, as least enough to know when there is a change in his or her needs or health. The guardian is also in charge of handling the financial support provided for the minor’s education, health, shelter, and other basic needs. Any extra finances left over per month should be returned to the estate. The guardian should also make regular reports on the minor’s condition, and keep the court informed if the minor changes residence for any reason whatsoever.

At the same time, the powers of the guardian stand in place of what the parents’ would have been. The guardian is authorized to sign consent for certain forms of medical treatment and other forms of rehabilitation and care, sign consent for marriage (if the guardianship extends past age of majority), and in some cases, sign consent for adoption. The probate must take these duties and powers into account when considering who to give a child’s guardianship to.

Probate Courts and the Protection of Minors

On paper, the responsibilities of the probate courts look straightforward. Even the appointment of executors and administrators for a decedent’s estate can be messy but simplified, because most of the people involved are over the age of majority. In the case of children, however, the state is responsible not for property but for persons. This is probably the most difficult responsibility that faces probate courts.