Guardians are held to a high degree of fiduciary duty and their actions, as any fiduciary, require the highest level of ethical conduct. Any interested person may challenge inappropriate conduct and the guardian faces personal liability if they violate the standard of care or, more specifically, engage in conduct that does not benefit the ward.
Nevertheless, the courts will grant the guardians broad discretion to act as long as they are not in a conflict of interest or self interest. The main point is that the person challenging the conduct of the guardian must ensure that the dispute is not over the method of care, but is actually over a violation of fiduciary duty. The guardian was appointed because their opinion mattered to the court or the ward, and the court will give deference to that opinion if there is disagreement.
What Happens When You Disagree with the Guardianship?
Anyone who disagrees with a guardianship can inform the judge about their concerns by “objecting” to the guardianship. There are different ways to object to a guardianship depending on whether or not a judge has signed an order assigning someone to be the guardian. Familiarize yourself with the following to learn how to raise any concerns with the judge:
- Before a Guardian is Appointed and;
- After a Guardian is Appointed.
What is A Contested Guardianship?
One of the most common legal issues with a guardianship is a contested one. The person under the guardianship will contest and challenge this arrangement to court. Usually, this happens because the person overseeing the estate or healthcare is not performing adequately or up to the role as a guardian in this circumstance.
One way to accomplish this failure is to withhold from giving of basic living necessities that are essential in everyday life. Contested guardianships occur due to abuse, neglect and severe lack of these duties. Keep in mind that further guidance with these issues may require the services of a lawyer to begin contesting the guardianship.
How to Contest a Guardianship?
Depending on each state, legal proceedings may be necessary to contest the situation. The courts will need to analyze all relevant factors and determine if the guardian is indeed suited to continue with the guardianship with the ward. The factors the court will reflect upon involve the relationship, if there are any conditions that mandate continued guardianship such as disability and special needs.
The financial matters, mental and physical stability of the guardian may support a change or to keep the situation the same. If the ward is suffering due to the situation and arrangements of the guardian, they will need to contest the situation. It is crucial to consult with a lawyer that is familiar with these matters to support and present the case to the judge for reconsideration with the guardian.
What are the Common Disputes Among the Wards and Guardians?
The guardian is an individual assigned to make decisions for someone else when that person is unable to do so. A guardian may be replaced if a court determines that the ward no longer needs the services of the guardian. Additionally, a guardian may be removed when he or she has not provided the necessary adequate care for the ward or when it is determined that the guardian is guilty of neglect.
Neglect can encompass using the ward’s money or property for the guardian’s own benefit and not following through with the court’s order. Upon court order, the guardian will be terminated and a new guardian (or temporary guardian) will be substituted in place of the original guardian. Given the major role of the guardian, it is not uncommon for wards and guardians to become engaged in disputes.
What are Some General Liabilities of Guardians to Ward?
Guardians are permitted reasonable compensation for their services. It is important to note that a debt owed by the guardian to the estate of the ward will be treated by the court as belonging to the estate of the ward. A release of the guardian by the ward will be set aside if there is any unfairness or undue advantage taken by the guardian.
When a minor ward reaches the age of maturity or dies, or an incapacitated ward regains the ability to manage their affairs, the guardianship does not automatically end. The guardian must formally file a final return and petition the court to be dismissed as guardian. The final return and petition for dismissal will specify that the guardian has completed their service in full compliance with the law and has turned over all remaining property to the ward or to the personal representative of the ward.
But, the guardian of a ward who passed away intestate becomes the administrator of the estate by right of office. They must conclude the affairs of the estate before being replaced, unless a personal representative for the decedent’s estate is assigned by the court.
Moreover, at the court hearing any interested person, including the ward, may object to the accounting or the discharge and request the court for relief. Courts review the cases with scrutiny and conduct their own fact finding hearings if the court determines it is necessary. Usually, both the guardian and the ward are represented by counsel in such hearings.
The guardian may sue in the name of the ward. A guardian can only be sued in the court in which they were appointed. A judgment against a guardian in their representative capacity formally binds the estate of the ward, but does not bind the guardian or the ward personally.
In their representative capacity, the guardian will be liable for necessaries utilized to the ward by third parties when they neglect or refuse to supply the ward with such necessaries. Additionally, the guardian may alone be personally liable when he or she contracts in excess of their authority. Note, however, that the guardian can mandate the ward to work and apply the proceeds for the necessities of life of the ward.
What Occurs at the Hearing?
The hearing to challenge actions of the guardian or remove him or her is a fully noticed hearing before the court. The right to call witnesses, cross examine witnesses, and argue the matter are presented. It is considered a trial in equity before the court with the court figuring out the appropriate action to take. But in emergency situations, there is necessary time allocated before the actual hearing occurs and during this time the parties prepare their arguments and evidence.
It is important to note that the court has broad discretion as to how to conduct the hearing and discovery and testimony of experts are usually permitted. While a person is not required to be represented by counsel to appear at the hearing, it is highly recommended. The specifics of this type of law is complex.
When Do I Need to Contact a Lawyer?
If you are in this type of situation seeking guidance on how to proceed further with a guardianship is important. You can seek out a local expert guardianship attorney to assist you further in this process.