legal custody



A legal guardian is a person who has been appointed by a court or otherwise has the legal authority (and the corresponding
duty A duty (from "due" meaning "that which is owing"; fro, deu, did, past participle of ''devoir''; la, debere, debitum, whence "debt") is a commitment or expectation to perform some action in general or if certain circumstances arise. A duty may ...
) to make decisions relevant to the personal and property interests of another person who is deemed incompetent, called a
ward Ward may refer to: Division or unit * Hospital ward, a hospital division, floor, or room set aside for a particular class or group of patients, for example the psychiatric ward * Prison ward, a division of a penal institution such as a pris ...
. For example, a legal guardian might be granted the authority to make decisions regarding a ward’s housing or medical care or manage the ward’s finances. 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. Guardianship intends to serve as a safeguard to protect the ward. Anyone can petition for a guardianship hearing if they believe another individual cannot make rational decisions on their own behalf. In a guardianship hearing, a judge ultimately decides whether guardianship is appropriate and, if so, will appoint a guardian. Guardians are typically used in four situations: guardianship for an incapacitated senior (due to old age or infirmity), guardianship for a minor, and guardianship for developmentally disabled adults and for adults found to be incompetent. A family member is most commonly appointed guardian , though a professional guardian or
public trustee The public trustee is an office established pursuant to national (and, if applicable, state or territory) statute, to act as a trustee, usually when a sum is required to be deposited as security by legislation, if courts remove another trustee, o ...
may be appointed if a suitable family member is not available.

Guardianship for incapacitated seniors

Guardianship for an incapacitated senior typically arises when someone determines that a senior has become unable to care for their own person and/or property. In fact, most alleged wards are elderly (''M''s = 76–82 years), many of whom resided in a care facility and had been diagnosed with a neurological impairment such as dementia. Typically, a precipitating incident prompts a professional, family member, health care worker, or clergyman to initiate guardianship proceedings. While guardianship intends to protect and support incapacitated seniors unable to care themselves or engage in the activities of daily living without assistance, guardianship sometimes results in financial exploitation of wards. In most states, the process will start with a determination whether the alleged incapacitated person is actually incapacitated. There will often be an evidentiary hearing. A systematic review 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. If the court determines an individual is incapacitated, the court then determines whether a guardian is necessary, the extent of the guardian's legal authority, (e.g. a guardian may be needed for the person's finances but not for the person) and, if so, who the guardian should be. 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 A power of attorney (POA) or letter of attorney is a written authorization to represent or act on another's behalf in private affairs (which may be financial or regarding health and welfare), business, or some other legal matter. The person auth ...
health care proxy In the field of medicine, a healthcare proxy (commonly referred to as HCP) is a document (legal instrument) with which a patient (primary individual) appoints an agent to legally make healthcare decisions on behalf of the patient, when the patient ...
. In some cases, a guardianship dispute can become quite contentious and can result in litigation between a parent and adult children or between different siblings against each other in what is essentially a pre-probate dispute over a parent's wealth.


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. In 6 of these 20 cases, the courts failed to adequately screen guardians ahead of time and appointed individuals with criminal convictions or significant financial problems, and in 12 of 20 cases, the courts failed to oversee guardians once they had been appointed.Guardianships: Cases of Financial Exploitation, Neglect, and Abuse of Seniors
Highlights, U.S. Government Accountability Office, Published: Sep 30, 2010. Publicly Released: Oct 27, 2010.
Column: With U.S. elder abuse in spotlight, a look at guardians
''Reuters'', Mark Miller, October 20, 2017.
In October 2017, '' The New Yorker'' published an article looking at the situation in Nevada in which professional guardians sometimes have a number of clients, and argued toward the conclusion that in a number of cases the courts did not properly oversee these arrangements.HOW THE ELDERLY LOSE THEIR RIGHTS, Guardians can sell the assets and control the lives of senior citizens without their consent—and reap a profit from it
''The New Yorker'', Rachel Aviv, October 9, 2017.
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.

Guardianship for minors

Natural guardian

A minor child's
parent A parent is a caregiver of the offspring in their own species. In humans, a parent is the caretaker of a child (where "child" refers to offspring, not necessarily age). A ''biological parent'' is a person whose gamete resulted in a child, a mal ...
s are the child's natural guardians.

Legal guardian

Most jurisdictions recognise that the parents of a child are the natural guardians of the child, and that the parents may designate who shall become the child's legal guardian in the event of death, typically subject to the approval of the court. The court may appoint a guardian for a minor if their parents are disabled or deceased or if the minor’s parents cannot properly manage their child’s safety and well-being. If a non-parent is appointed as guardian, the court will determine how the parents' parental rights are impacted by the appointment (e.g., establishing visitation schedules).

Guardianship for developmentally disabled adults

Legal guardians may be appointed in guardianship cases for
adult An adult is a human or other animal that has reached full growth. In human context, the term ''adult'' has meanings associated with social and legal concepts. In contrast to a " minor", a legal adult is a person who has attained the age of ma ...
s (see also
conservatorship Under U.S. law, conservatorship is the appointment of a guardian or a protector by a judge to manage the financial affairs and/or daily life of another person due to old age or physical or mental limitations. A person under conservatorship is a ...
). For example, because parents are not automatically appointed to serve as the guardian of their developmentally-disabled child who reaches adulthood, parents may start a guardianship action to become the legal guardians when the child reaches the
age of majority The age of majority is the threshold of legal adulthood as recognized or declared in law. It is the moment when minors cease to be considered such and assume legal control over their persons, actions, and decisions, thus terminating the contr ...
. A famous example of such an arrangement is the situation involving
Britney Spears Britney Jean Spears (born December 2, 1981) is an American singer. Often referred to as the " Princess of Pop", she is credited with influencing the revival of teen pop during the late 1990s and early 2000s. After appearing in stage productio ...
, who was placed into a conservatorship under the supervision of her father, Jamie Spears, and attorney Andrew Wallet in 2008, following a series of highly publicized personal struggles and issues with mental health.

Rules applicable to all guardians

Courts generally have the power to appoint a guardian for an individual in need of special protection. A guardian with responsibility for both the personal well-being and the financial interests of the ward is a ''general guardian''. A person may also be appointed as a ''special guardian'', having limited powers over the interests of the ward. A special guardian may, for example, be given the legal right to determine the disposition of the ward's property without being given any authority over the ward's person. Depending on the jurisdiction, a legal guardian may be called a " conservator", "custodian", or curator. Many jurisdictions and the Uniform Probate Code distinguish between a "guardian" or "guardian of the person" who is an individual with authority over and fiduciary responsibilities for the physical person of the ward, and a "conservator" or "guardian of the property" of a ward who has authority over and fiduciary responsibilities for significant property (often an inheritance or personal injury settlement) belonging to the ward. Some jurisdictions provide for public guardianship programs serving incapacitated adults or children. A guardian is a
fiduciary A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties (person or group of persons). Typically, a fiduciary prudently takes care of money or other assets for another person. One party, for examp ...
and is held to a very high standard of care in exercising their powers. If the ward owns substantial property, then guardian may be required to give a
surety bond In finance, a surety , surety bond or guaranty involves a promise by one party to assume responsibility for the debt obligation of a borrower if that borrower defaults. Usually, a surety bond or surety is a promise by a surety or guarantor to pa ...
to protect the ward in case dishonesty or incompetence on their part causes financial loss to the ward.

Guardian ''ad litem''

The Latin legal term ''ad litem'' means "for the lawsuit" or "for the legal proceeding". A guardian ''ad litem'' is thus someone appointed to represent in court the interests of a person too vulnerable to represent themselves, typically due to youth or mental incapacity.

United States

Guardianship is not federally regulated in the United States; therefore, states vary widely in how they address and manage guardianship cases.

Family law and dependency courts

Guardians ''
ad litem ''Ad litem'' ( Latin: "for the suit") is a term used in law to refer to the appointment by a court of one party to act in a lawsuit on behalf of another party such as a child or an incapacitated adult, who is deemed incapable of representing the ...
'' (GsAL) are persons appointed by the court to represent "the best interests of the child" in court proceedings. 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 Court Appointed Special Advocates (CASA) is a national association in the United States that supports and promotes court-appointed advocates for abused or neglected children. CASA are volunteers from the community who complete training that has ...
(CASA). In New York State, they are known as attorneys-for-the-child (AFCs). They are the voice of the child and may represent the child in court, with many judges adhering to any recommendation given by a GAL. GALs may assist where a child is removed from a hostile environment and custody given to the relevant state or county family services agency, and in those cases assists in the protection of the minor child. Qualifications vary by state, ranging from no experience or qualification, volunteers to
social worker Social work is an academic discipline and practice-based profession concerned with meeting the basic needs of individuals, families, groups, communities, and society as a whole to enhance their individual and collective well-being. Social wo ...
s to attorneys to others. The GAL's only job is to represent the minor children's best interest and advise the court. A guardian ''ad litem'' is an officer of the court, does not represent the parties in the suit, and often enjoys quasi-judicial immunity from any action from the parties involved in a particular case. Training, qualifications and supervision vary from state-to-state, which means that their quality is similarly variable. In, for instance, North Carolina, an applicant (volunteer) must go through a background check and complete 30 hours of training. Although a guardian ''ad litem'' working through a CASA program volunteers their services, some guardians ''ad litem'' are paid for their services. They must submit detailed time and expense reports to the court for approval. Their fees are taxed as costs in the case. Courts may order all parties to share in the cost, or the court may order a particular party to pay the fees. Volunteer guardians ''ad litem'' and those that volunteer though a CASA program need to make sure that they do not engage in the unauthorized practice of law. Therefore, when they appear in court (even if they are an attorney) as a volunteer GAL, it is best practice to be represented by an attorney and have attorneys file motions on their behalf. Guardians ''ad litem'' are also appointed in cases where there has been an allegation of
child abuse Child abuse (also called child endangerment or child maltreatment) is physical, sexual, and/or psychological maltreatment or neglect of a child or children, especially by a parent or a caregiver. Child abuse may include any act or failure to ...
, child neglect, PINS,
juvenile delinquency Juvenile delinquency, also known as juvenile offending, is the act of participating in unlawful behavior as a minor or individual younger than the statutory age of majority. In the United States of America, a juvenile delinquent is a person ...
, or dependency. In these situations, the guardian ''ad litem'' is charged to represent the best interests of the minor child, which can differ from the position of the state or government agency as well as the interest of the parent or guardian. These guardians ''ad litem'' vary by jurisdiction and can be volunteer
advocate An advocate is a professional in the field of law. Different countries' legal systems use the term with somewhat differing meanings. The broad equivalent in many English law–based jurisdictions could be a barrister or a solicitor. However, ...
s or attorneys. For example, in North Carolina, trained GAL volunteers are paired with attorney advocates to advocate for the best interest of abused and neglected children. The program defines a child's best interest as a safe, permanent home.

Mental health and probate courts

Guardians ''ad litem'' can be appointed by the court to represent the interests of mentally ill or disabled persons. For example, the
Code of Virginia The Code of Virginia is the statutory law of the U.S. state of Virginia, and consists of the codified legislation of the Virginia General Assembly. The 1950 Code of Virginia is the revision currently in force. The previous official versions ...
requires that the court appoint a "discreet and competent attorney-at-law" or "some other discreet and proper person" to serve as guardian ''ad litem'' to protect the interests of a person under a disability.

England and Wales


section 13
of the Prison Act 1952. In section 4 of the Official Secrets Act 1989, the expression "legal custody" includes detention in pursuance of any enactment or any instrument made under an enactment.


section 86
of the Children Act 1975.

Mental patients

Any person required or authorized by or by virtue of the
Mental Health Act 1983 The Mental Health Act 1983 (c.20) is an Act of the Parliament of the United Kingdom. It covers the reception, care and treatment of mentally disordered people, the management of their property and other related matters, forming part of the ment ...
to be conveyed to any place or to be kept in custody or detained in a place of safety or at any place to which he is taken under section 42(6) of that Act is, while being so conveyed, detained or kept, as the case may be, deemed to be in legal custody. For this purpose "convey" includes any other expression denoting removal from one place to another.

Estates and financial decision making

Guardians ''ad litem'' are sometimes appointed in probate matters to represent the interests of unknown or unlocated heirs to an estate.

Settlement guardians ''ad litem''

When a settlement is reached in personal injury or medical malpractice case involving claims brought on behalf of a minor or incapacitated plaintiff, courts normally appoint a guardian ''ad litem'' to review the terms of the settlement and ensure it is fair and in the best interests of the claimant. The settlement guardian ''ad litem'' thoroughly investigates the case, to determine whether the settlement amount is fair and reasonable.

Alternatives to guardianship

Because guardianship limits a ward's autonomy and ability to make certain life decisions, guardianship has the potential to damage a ward’s health and well-being. 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. Three examples of alternatives include establishing advance directives, relying on supported decision-making, or taking advantage of community-related services that support individuals with functional limitations. Advance directives allow an competent individual to provide their input as to what actions should be taken should they become incompetent. 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. The establishment of advance directives is a common practice among seniors in the United States. Further, some individuals with limited functional capacities might maintain their autonomy by relying on family or friends who can help that individual informally or formally navigate important life decisions without formal guardianship, called “supported decision-making.” For example, these support individuals can provide suggestions on where their loved one should live or recommend certain treatment options in medical settings. This support system can also help the individual modify their environment to promote their success. 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. This technique allows individuals to support and empower loved ones who are cognitively impaired. Finally, employing community services that will alleviate stressors of daily living may allow an alleged ward to maintain their autonomy. For example, certain volunteer organizations provide services such as telephone check-ins and home visits, and many medical or mental health professionals offer in-home services. In summary, while guardianship sometimes offers the best solution to supporting an individual who demonstrates functional incapacity, one might consider exploring alternative solutions before seeking legal guardianship.

Situation in other countries

England and Wales

Guardians ''ad litem'' are employed by Children and Family Court Advisory and Support Service (CAFCASS), a
non-departmental public body In the United Kingdom, non-departmental public body (NDPB) is a classification applied by the Cabinet Office, Treasury, the Scottish Government and the Northern Ireland Executive to public sector organisations that have a role in the process o ...
, to represent the interests of children in cases where the child's wishes differ from those of either parent, known as a Section 16.4 case. The posts are filled by senior social workers with experience in family law proceedings. In 2006, a legal status of "special guardianship" was introduced (using powers delegated by the Adoption and Children Act 2002) to allow for a child to be cared for by a person with rights similar to a traditional legal guardian, but without absolute legal separation from the child's birth parents. These are not to be confused with court-appointed special guardians in other jurisdictions.


The German guardianship law with regard to adults was completely changed in 1990. Guardianship (''Vormundschaft'') of an adult was renamed 'curatorship' (''Betreuung''), although it remains ''Vormundschaft'' for minors. When a person of full age who, as a result of
mental disease A mental disorder, also referred to as a mental illness or psychiatric disorder, is a behavioral or mental pattern that causes significant distress or impairment of personal functioning. Such features may be persistent, relapsing and remitt ...
or physical, mental or psychological handicap is incapable of managing his own affairs, a guardian (Betreuer) can be appointed (section 1,896,
German Civil Code German(s) may refer to: * Germany (of or related to) ** Germania (historical use) * Germans, citizens of Germany, people of German ancestry, or native speakers of the German language ** For citizens of Germany, see also German nationality law ** ...
). An adult guardian is responsible for personal and estate matters, as well as for medical treatment. However, the ward has normally full capacity with all human rights such as those to marry, vote or make a will. The ward's legal capacity can be lost as a result of a court judgment or order (section 1903, German Civ. C.; ''Einwilligungsvorbehalt''). Every guardian has to report annually to the guardianship court (''Betreuungsgericht''). Professional guardians (Berufsbetreuer) normally hold university degrees in law or social work.


In Israel, over 50,000 adults have had legal guardians appointed for them; 85% of them have family members as their guardians, and 15% have professional guardians. 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. The Office of the Administrator General (public guardian) at the Ministry of Justice is now implementing a system to supervise guardians in regard to personal matters in order to help identify situations in which guardians are not performing their duties adequately.

Republic of Ireland

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 Seanad Éireann (, ; "Senate of Ireland") is the upper house of the Oireachtas (the Irish legislature), which also comprises the President of Ireland and Dáil Éireann (the lower house). It is commonly called the Seanad or Senate and its mem ...
(the Irish Senate), David Norris. The Children Acts Advisory Board which was set up to advise the ministers of the government on policy development under the Child Care Act 1991 was then abolished in September 2011. Judges are responsible for appointing child guardians and can choose guardians from Barnardo's a children's charitable service or from among the self-employed guardians, who are mostly former social workers who have gone into private business since the legislation.

Saudi Arabia

Saudi Arabia has edited the law, and women in Saudi Arabia are no longer required to have a male guardian (
Wali A wali (''wali'' ar, وَلِيّ, '; plural , '), the Arabic word which has been variously translated "master", "authority", "custodian", "protector", is most commonly used by Muslims to indicate an Islamic saint, otherwise referred to by the ...
) to give permission for various government and economic transactions, as well as some personal life and health decisions.


Swedish parental law (''the Parental Code'') regulates legal guardianship for both children and disabled adults. Legal guardianship for
unaccompanied minor An unaccompanied minor (sometimes "unaccompanied child" or "separated child") is a child without the presence of a legal guardian. The UN Committee on the Rights of the Child defines unaccompanied minors and unaccompanied children as those "who ...
s is regulated by a law of its own. Except for normal parenthood, the guardianship is assigned by the district court and supervised by the Chief Guardian, a municipal authority that is mandatory in every Swedish municipality. What is included in the field of guardianship is decided by the district court. The responsibility for health care and
nursing Nursing is a profession within the health care sector focused on the care of individuals, families, and communities so they may attain, maintain, or recover optimal health and quality of life. Nurses may be differentiated from other health c ...
is never included in the guardianship for adults, but is always so for minors. The guardianship for adults can take two legal forms, "conservator" or "administrator". The main difference between these two is that an "administrator" has the sole permission to take legal actions within the field of the guardianship. A guardianship can have different legal forms for different parts of the guardianship. Such things as basic human rights is never denied the ward by this law, but some of them can be denied by other laws. A conservator is normally assigned with the approval of the ward. But if the physical conditions of the ward does not permit him to give such approval, a conservator can be assigned anyhow. Everything a conservator does for his ward have to be approved by him, or can be assumed to be approved by him. For more complex situations, like taking loans or selling of a house, he or she needs approval from the local authorities. Once a year a legally assigned guardian have to send his
accounting Accounting, also known as accountancy, is the measurement, processing, and communication of financial and non financial information about economic entities such as businesses and corporations. Accounting, which has been called the "language ...
to the Chief Guardian for review. Since the year 2017, the ward can, while she still have her mental abilities, write a special future letter of attorney (''Framtidsfullmakt'') which later can be used when she loses her abilities. How such a letter should be written is described in detail in the paternal law, and normally follows the principles of a
will Will may refer to: Common meanings * Will and testament, instructions for the disposition of one's property after death * Will (philosophy), or willpower * Will (sociology) * Will, volition (psychology) * Will, a modal verb - see Shall and will ...
. This law was created since it in Sweden is unclear if a normal letter of attorney is valid after the ward has lost her abilities.

See also

Conservatorship Under U.S. law, conservatorship is the appointment of a guardian or a protector by a judge to manage the financial affairs and/or daily life of another person due to old age or physical or mental limitations. A person under conservatorship is a ...
* Custodial account *
Foster care Foster care is a system in which a underage, minor has been placed into a ward (law), ward, group home (Residential Child Care Community, residential child care community, Treatment centre, treatment center, etc.), or private home of a state-ce ...
Receivership In law, receivership is a situation in which an institution or enterprise is held by a receiver—a person "placed in the custodial responsibility for the property of others, including tangible and intangible assets and rights"—especially in c ...
Wali (Islamic legal guardian) ''Walī'' ( ar, ولي, plural ʾawliyāʾ أولياء) is an Arabic word with a number of meanings, including, "protector", "helper", "a man close to God", or "holy man", etc. "Wali" can also mean a "legal guardian", or ruler; someone who has "W ...
* Apotropos - the term in
Jewish law ''Halakha'' (; he, הֲלָכָה, ), also transliterated as ''halacha'', ''halakhah'', and ''halocho'' ( ), is the collective body of Jewish religious laws which is derived from the written and Oral Torah. Halakha is based on biblical command ...
and Israeli law


External links

National Guardianship Association (USA)

Mental Capacity Act 2005 (England and Wales)

National Association to Stop Guardian Abuse (NASGA)
United States

{{DEFAULTSORT:Legal Guardian
Guardian Guardian usually refers to: * Legal guardian, a person with the authority and duty to care for the interests of another * ''The Guardian'', a British daily newspaper (The) Guardian(s) may also refer to: Places * Guardian, West Virginia, Uni ...
Child custody Environmental personhood