Guardianship

A court may confer different types of powers on a guardian. Plenary power is complete authority over the ward's person and estate, encompassing virtually every element of the ward's life, including health care and residential choices. Alternatively, guardianship powers may be restricted to control of the ward's estate. In the latter event, the guardian of the estate may make decisions only about the handling of the ward's financial assets—real and personal property—and income. A court may also appoint a guardian ad litem who has authority to represent the ward just in a particular legal proceeding, such as a petition for authority to terminate life-sustaining medical intervention.

Courts and legislatures traditionally have treated mental competence as an all-or-nothing concept, even though an older person's functional capacity may wax and wane from time to time and vary widely depending on the kind of choice facing the individual and various environmental factors. In recognition of this reality, all states now allow courts to grant "limited" or "partial" guardianship explicitly delineating the particular, limited types of decisions that the ward is incapable of making and over which the guardian may exercise surrogate authority, with all remaining power residing with the ward. This approach is driven by the constitutional principle that, when the state absolutely must intervene in the life of a person without that person's voluntary permission, the state should engage in the least restrictive or intrusive alternative possible, consistent with accomplishing the state's legitimate goals. Limited or partial guardianship statutes may be permissive, allowing but not requiring courts to carefully tailor the guardian's powers to the ward's needs, or they may mandate that the guardian's powers be drawn as narrowly as possible by the appointing judge.

Any ward, but especially one for whom a plenary guardian has been appointed, inevitably suffers a serious deprivation of decision-making authority. Among numerous kinds of choices taken away, a ward may lose the right to enter into a binding contract, to vote, to hold public office, to marry or divorce, to hold a license (such as a motor vehicle driver's license), to execute a will, to own and sell or give away real and personal property, and to sue and be sued in the courts.

Once a guardianship has been imposed, the appointed guardian is expected to act in a fiduciary, or trust, manner. This responsibility may be fulfilled by performing in a way that is either (1) in accordance with the guardian's judgment of the ward's best interests or (2) consistent with previously expressed or implied values and preferences of the ward. The latter approach is called substituted judgment, which is now preferred by most legislatures and courts as most respectful of the ward's own life experiences and deeply held principles. The court retains continuing jurisdiction or power to oversee the guardian's conduct.

Any guardianship may be discontinued when it is no longer needed, and in some states appropriateness must be reviewed at least annually. The successful termination of a guardianship is difficult, because the party arguing for termination bears the burden of proving that competence has been restored.