Guardianship Fiduciary Duties

A guardian is primarily responsible for an elder or minor ward’s personal care. This may include providing them with a place to live, and with ensuring their medical needs are met.

A guardian’s duty is to provide their ward with a place to live, such as the guardian’s home, with a caretaker, or in an assisted living or full-care facility. Furthermore, they must manage the minor wards’ education needs or any other training that the ward might require. Minor financial responsibilities, such as paying bills and purchasing daily necessities, are part of the tasks for a guardian as well.

A guardian can often decide on medical issues on behalf of the ward, although some states limit this power depending on the status of the ward. In sum, there are three types of guardians: general guardian, guardian of the person, and guardian of the estate. Each type of guardian has specific duties; however, all types of guardians must adhere to the general guardianship principles.

All guardians are required to:

• Ensure that the guardianship is tailored to meet the essential needs of the individual ward;
• Make decisions that benefit the health and well being of the ward, based on what the ward would decide if capable of making the decision;
• Seek information about the ward’s value system, desires, and needs from the ward, the ward’s family, friends, or legal documents such as a Living Will;
• Involve the ward in all decision making processes to the extent possible;
• Allow the ward the opportunity to exercise rights that are within his/her comprehension and judgment, permitting the ward the same possibility for error as a person who is not incompetent;
• Support the ward to develop the necessary skills to assume responsibility for his/her own decision-making and;
• Ensure the guardianship is periodically reviewed and consider alternatives to guardianship, including restoration to competency or a limited guardianship.

Typically, a general guardian decides on the care and on the maintenance of the ward’s person and of the ward’s estate. Additionally, the general guardian has all the duties listed below of both a guardian of the person and a guardian of the estate. A guardian of the person is appointed to make decisions regarding the ward’s personal care, including medical and psychological treatment.

Other specific duties in addition to the ones mentioned above, of a guardian of the person may be required to:

• Take custody of the ward’s person;
• Make provisions for the ward’s care, comfort, and maintenance;
• Be responsible for any action necessary to protect the ward from further mistreatment in instances where the guardian learns the ward is being mistreated;
• Arrange for the ward’s training, education, employment, habilitation, or rehabilitation;
• Maintain care of the ward’s clothing, furniture, vehicles, and other personal property; .
• Establish the ward’s residence, giving preference to places suggested by the ward. If the only appropriate residence is a treatment facility, give preference to facilities that are community-based;
• Give consent or approval necessary to enable the ward to obtain medical, legal, psychological, or other professional care, counsel, treatment, or service;
• Honor any written advance instructions for the ward’s medical or mental health care;
• Seek professional expert consultation in any instances where there is a question about appropriate medical or psychological treatment, or whether treatment should be provided;
• Give any other type of consent or approval on the ward’s behalf that is necessary or is in the ward’s best interest.
• Arrange for regular medical and dental examinations for the ward as needed and as required for annual status reports and;
• Turn over the ward’s personal effects to the executor or administrator of the ward’s estate upon the ward’s death.

It is important to check the local state regulations regarding guardianship because they may differ across state lines.

When is a Guardianship Appropriate?

A guardianship may be appropriate if:

• The ward is a minor with no parents or relatives who can serve as daily caretakers;
• The ward is an adult who is not mentally or physically capable of taking care of themselves and their basic needs and;
• The ward has special educational or medical needs that are not currently being provided.

As mentioned earlier, the guardian’s duties depend on the type of guardianship proceeding that has been initiated. Guardian of a person is the person that is required to make healthcare, living and education decisions for the minor child. These may include providing food, clothing, housing and daily activities, such as taking a child to school or taking them to healthcare appointments.

Moreover, it means ensuring that the ward has adequate food—whether that means arranging a food assistance program or ensuring that groceries are being delivered. Also, it is important to note that the guardian would need to provide for social activity. This could involve acting as a companion or checking in to ensure that the person is doing well. It can mean arranging for the ward to be driven to medical appointments or driving the ward to medical appointments yourself. The duties are slightly varied from a guardian of the property.

For instance, the guardian of the property is often responsible for paying for all of the services. The guardian of the property is generally responsible for using the ward’s funds to pay for medical bills, to pay for food, to pay for the companion care, to invest the ward’s assets, to pay the taxes of the ward, to prepare and file the income taxes of the ward, and, generally, to make financial and legal decisions on behalf of the ward rather than medical decisions.

Furthermore, depending on whether someone is appointed guardian of the person or guardian of the property, a guardian of the person has a broad standard for fulfilling the needs of the ward. Meaning, making healthcare decisions or providing for clothing, food, or entertainment. It is a broad responsibility based on the individual needs of the ward.

For the guardian of the property, the primary standard is whether the guardian managed all of the ward’s financial and legal affairs in the same prudent way that the guardian would manage his or her own financial and legal affairs. This means demonstrating that all bills have been paid from the ward’s money and showing that investments are made or managed. Keep in mind that a guardian of the property should not commingle his personal funds with the funds of a ward.

A guardian of property ensures that all funds due to the ward have been collected and deposited safely into the ward’s accounts. A guardian of the property is required to file the income tax returns for the ward on the ward’s behalf, provide funding for food, clothing, social opportunities, and medical care based on the ward’s specific needs, and take into account the amount of the ward’s assets.

In most jurisdictions, the actions of guardians are typically reviewed annually or semi-annually by the court. If the court determines that a guardian is not fulfilling his or her duties, then the court may demand a removal of the guardian and seek the appointment of another guardian who would be in the best interest of the child.

What are the Consequences of a Fiduciary Breach?

A breach of fiduciary duty can bring on a number of consequences. But, not all of them have legal consequences. An accusation of a breach of fiduciary duty can damage the reputation of a professional. Moreover, a client can end a professional relationship because they do not trust a professional’s care of the required fiduciary duty.

It is important to note that a successful breach of fiduciary duty lawsuit can result in monetary penalties for direct damages, indirect damages, and legal costs. A court ruling can also lead to industry discrediting, the loss of a license, or removal from service.

When Do I Need to Contact A Lawyer?

A family law attorney can assist the guardian by advising him or her of his duties and fiduciary obligations. If you need expert legal advice, seek out a local guardianship attorney for further guidance. Additionally, an attorney may also assist a guardian with the preparation of the required reports that are required to be submitted to the court.