We must keep in mind that a guardian is only appointed when the ward (the person with a guardian) has some disability. The disability might be mental or physical, or a combination of both. It could also be the “infirmities of old age.” However, it must be a disability that prevents him or her from managing their day to their affairs.
That is why the duties and powers of a guardian reflect the role that parents might play with respect to their child. In fact, Wyoming laws provide that the guardian of a minor has the powers and responsibilities of a parent who has not been deprived of custody of his minor child.
Some Powers are Also Duties of a Guardian
Just as parents have powers and duties towards their children, guardians are allowed and required to do the following:
- Determine and facilitate the least restrictive and most appropriate and available residence for the ward – this means that the guardian cannot institutionalize a ward, if the ward could live in a group home, or on their own, with assistance.
- Facilitate the ward’s education, social and other activities – a guardian needs to send the ward to school, if appropriate. Guardian should also take a senior ward to the senior center for Wii bowling, etc.
- Authorize or expressly withhold authorization of medical or other professional care, treatment or advice, with some restrictions – make sure the ward receives appropriate medical care.
- Take reasonable care of the ward’s personal property and commence protective proceedings if necessary.
- Apply to the ward’s current needs for support, care and education as much of the money or property paid or delivered to the guardian as may be appropriate, and exercise due care to conserve excess funds for the ward’s future needs – in other words, make sure the ward is taken care of, but don’t blow their income.
- Pay to the conservator excess funds at least annually.
- Following the death of a ward, arrange for the final disposition of the ward’s remains according to the ward’s expressed wishes if known, if the immediate family is unavailable or unwilling to assume responsibility. For purposes of this paragraph, “immediate family” is defined as parents, spouse, grandparents, siblings and adult children.
Some Additional Powers of a Guardian
The following powers are not duties:
- Receive money payable from any conservatorship for the support of the ward – if a conservator is supposed to pay money to the ward, he can pay it to the guardian.
- Receive money or property of the ward and institute proceedings to compel the performance by any person of the duty to support or contribute to the support of the ward – if the ward is entitled to receive money from a trust or conservator, the guardian can file an action to make sure those moneys are not withheld.
- Consent to the marriage or adoption of the ward – this is a biggie. A ward cannot be married without the consent of the guardian, but the guardian does not have to consent.
Miscellaneous Powers and Duties of a Guardian
Continuing on with the theme of a guardian as “parent” of the ward, there are a couple of additional provisions in the laws:
The guardian is not liable for injury to the ward resulting from the negligence or acts of third persons performed by authority given by the guardian for medical or other professional care, treatment or advice, unless it would have been negligent for a parent to have given that authority. In other words, take the ward to appropriate treatment providers, or you will be liable for any injuries they may suffer.
A Guardian may not use funds paid to the ward to pay themselves caretaker fees.
On the other hand, a guardian who is not a parent of the minor is not obligated to expend his own funds for the support of the ward, and
Unlike a parent, a guardian who is not the parent of a minor, is not liable to third persons for acts of the ward.
Some Powers of a Guardian Requiring Court Approval
Some powers of the guardian have a huge impact on the ward’s rights and liberties. Therefore, the ward must get approval from the Court before doing any of the following:
- Commit the ward to a mental health hospital or other mental health facility.
- Consent to electroshock therapy, psychosurgery, sterilization or other long-term or permanent contraception.
- Relinquish the ward’s minor child for adoption, and
- Execute any appropriate advance medical directives, including durable power of attorney for health care and an individual health care directive.
Conclusion
The powers and duties of a guardian with respect to the ward mimic the powers and duties a parent may have towards their child. A guardian assumes a great responsibility for another human being. Therefore, the decision to become a guardian should not be taken lightly.
By Steve Harton