[2] Guardianship is most appropriate when an alleged ward is functionally incapacitated, meaning they have a lagging skill critical to performing certain tasks, such as making important life decisions.
In fact, most alleged wards are elderly (Ms = 76–82 years), many of whom resided in a care facility and had been diagnosed with a neurological impairment such as dementia.
[3] Typically, a precipitating incident prompts a professional, family member, health care worker, or clergyman to initiate guardianship proceedings.
A systematic review [3] of guardianship studies from the United States, Sweden, and Australia found that the most commonly used evidence in guardianship hearings was the alleged ward's medical condition; perhaps surprisingly, descriptions of the alleged ward's cognitive abilities, functional abilities and psychiatric symptoms are much less common.
[5] The determination of whether a guardianship is necessary may consider a number of factors, including whether there is a lesser restrictive alternative, such as the use of an already existing power of attorney and health care proxy.
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.
[9] In 2018, the investigative documentary "The Guardians" was published, alleging "legal kidnapping of elderly people" in Nevada by private guardianship businesses with no familial or other preexisting relations to their wards, seeking to economically profit from seniors' savings.
They are not the same as "legal guardians" and are often appointed in under-age-children cases, many times to represent the interests of the minor children.
Guardians ad litem may be called, in some U.S. states, Court Appointed Special Advocates (CASA).
[18] In Minnesota, the minimum qualifications to become a GAL are Bachelor's degree in psychology, social work, education, nursing, criminal justice, law or child-related discipline and some experience working with families and children or an equivalent combination of education and relevant experience.
[22] Guardians ad litem can be appointed by the court to represent the interests of mentally ill or disabled persons.
[23] Guardians ad litem are sometimes appointed in probate matters to represent the interests of unknown or unlocated heirs to an estate.
When a settlement is reached in personal injury or medical malpractice cases involving claims brought on behalf of a minor or an incapacitated plaintiff, courts normally appoint a guardian ad litem to review the terms of the settlement, and to ensure it is fair and in the best interests of the claimant.
[1][2] As a result, individuals considering guardianship to support a loved one with functional incapacities might consider whether there are less restrictive alternatives that can achieve the same objectives.
[1] For example, in a healthcare setting, an advance directive would allow a patient to voice what treatment options they prefer and who they would like to make decisions on their behalf should they become incompetent.
[27][15] For example, these support individuals can provide suggestions on where their loved one should live or recommend certain treatment options in medical settings.
For example, if a family member is concerned that their loved one with reduced functional capacity might engage in an unsafe behavior (e.g., leaving the gas stove on), this family member can reduce the opportunity for this behavior (e.g., removing the gas stove) without court involvement.
[27] Finally, employing community services that will alleviate stressors of daily living may allow an alleged ward to maintain their autonomy.
The Korean family court, or one of its branches, has authority over the ward's address and will hear the guardianship case.
In England and Wales, only an Approved Mental Health Professional has the power to detain a person under the Act.
The ward's legal capacity can be lost as a result of a court judgment or order (section 1903, German Civ.
Professional guardians (Berufsbetreuer) normally hold university degrees in law or social work.
Until 2014, guardians (the term there is "Apotropos") were supervised by the Office of the Administrator General at the Ministry of Justice in matters of property only.
However, changes in Israel and other countries along with public pressure, appeals to the courts by social organizations, academic studies and the State Comptroller's 2004 report led to the decision to broaden the scope of supervision to include personal matters as well, to ensure that the guardians take care of all areas of life, including medical care, personal care, suitable housing, work and employment, social and recreational activities, etc., taking account of the person's wishes and acting accordingly.
[34] The court-appointed guardian system in the Republic of Ireland was brought into law on the proposal of the noted gay activist and member of Seanad Éireann (the Irish Senate), David Norris.
For more complex situations, like taking loans or selling of a house, he or she needs approval from the local authorities.
This law was created since in Sweden, it is unclear if a normal letter of attorney is valid after the ward has lost her abilities.