THE RELATIONSHIP BETWEEN THE GUARDIAN AND THE COURT

Abstract

Setting national standards for guardians in their relationship to the court that appointed them is complicated by a number of factors, including the variability of state laws governing guardianship, the authority granted to guardians, the reporting requirements postappointment, the entities that serve as guardian, terminology, and the nature of the jurisdiction of the appointing court. Also the name of the appointing court varies. The name could be the probate court, county court, district court, circuit court, court of common pleas, chancery court, surrogate court, superior court, the orphans court, or the family court to name a few. In some states, the family court handles guardianship of person matters, whereas guardianship of estate is a matter for the probate court. In other states, both the guardianship of person and the guardianship of estate are handled in the probate court. States differ as to whether a judge is elected or appointed, or a combination of both. In some states, judges are elected or appointed to hear only probate and guardianship matters. Other states are general jurisdiction, which means that judges rotate through the probate department and are assigned to probate and guardianship matters as one of their many assignments during a judicial career. In smaller jurisdictions, the judge may have guardianship as one of several assignments at one time, which could include criminal and family. In 2011, the National College of Probate Judges studied the matter and found that thirty-three states and the District of Columbia have courts of general jurisdiction, thirteen states have specified probate courts, and four states are a combination of the two approaches. In addition to judicial variability, there is guardian variability. There are several types of guardians and each brings skills and shortcomings to the task. Approximately 70 percent are family members. Most family members who are guardians have never been in that role before and most likely will never serve again. Nonfamily guardians can be lawyers, accountants, social workers, volunteers, nurses, neighbors, friends, banks, county agencies (public guardian), for profit agencies, and nonprofit agencies. This variety of guardians, their differing relationship to the person in guardianship, and their expectation of fees contributes to the difficulties of setting standards for all guardians. Nevertheless, the relationship between the guardian and the court can be seen as a critical partnership that supports the incapacitated person who cannot care for himself.