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. Guardians are typically used in three situations: guardianship for an incapacitated senior (due to old age or infirmity), guardianship for a minor, and guardianship for developmentally disabled adults.
A guardianship for an incapacitated senior will typically arise where someone determines that a senior has become unable to care for their own person and/or property. In some cases, there may be a belief that the senior is being financially exploited or about to be exploited. In other cases, the person may be unable to care for him or herself and is not able to properly engage in the activities of daily living without assistance. There will typically be a precipitating incident that causes a professional, family member, health care worker or clergyman to initiate guardianship proceedings.
A report published in 2010 by the U.S. Government Accountability Office looked at 20 selected closed cases in which guardians stole or otherwise improperly obtained assets from clients. In 6 of these 20 cases, the courts failed to adequately screen guardians ahead of time and appointed individuals with criminal convictions or significant financial problems, and in 12 of 20 cases, the courts failed to oversee guardians once they had been appointed.
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 may designate who shall become the child's legal guardian in the event of death, typically subject to the approval of the court. Where a minor child's parents are disabled or deceased, it may be necessary for a court to appoint a guardian.
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.
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, does not represent the parties in the suit, and often enjoys quasi-judicial immunity from any action from the parties involved in a particular case. Training, qualifications and supervision vary from state-to-state, which means that their quality is similarly variable. In, for instance, North Carolina, an applicant (volunteer) must go through a background check and complete 30 hours of training.
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.
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.
