Legal Guardianship

Legal guardianship is the process by which one individual (a legal guardian) is appointed by a court to care for the personal and property interests of another individual (a ward) in situations where the latter is unable to function independently. Guardians are appointed to represent children, developmentally disabled and mentally ill adults, and the elderly who have been deemed legally incompetent and to make decisions on their behalf. The appointment of a guardian represents a critical point in a ward’s life as it essentially rescinds that person’s right to make independent decisions.

Judges often rely on input from psychologists or other mental health professionals to help them determine whether guardianship is appropriate. Ideally, family members or close friends are appointed as guardians, keeping the ward’s best interests in mind, though this is not always the case.

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Guardianship statutes originate from the doctrine of parens patriae, which gives to the state the right and duty to protect people who cannot care for themselves due to infancy, disability, or incapacity. The request for guardianship often comes from a family member who petitions a court to be allowed to make decisions concerning a relative, though public guardians are sometimes appointed to represent the interests of wards who have no relatives or friends to assume that role. The appointment of a guardian essentially rescinds an individual’s right to independence and self-determination and can result in the loss of freedom to make decisions about financial matters, health care, housing, education, employment, purchases and sales of property, travel, and marriage and divorce.

Guardianship practices are dictated by state statutes rather than by federal laws, resulting in subtle differences in the type and scope of guardianship arrangements, though nearly all statutes distinguish between protection of an individual and protection of an estate (in some jurisdictions, these responsibilities are termed guardianship and conservatorship, respectively) and between full (or “plenary”) guardians, who make critical decisions in all realms of a ward’s life, and partial (or “limited”) guardians, who may act only in restricted domains as determined by a court. The intent of limited guardianship is to preserve a ward’s autonomy as much as possible so that he or she may continue to function independently.

Guardianship of Children

In most jurisdictions, parents of a minor child are the legal guardians of that child, and they can designate the person or persons who would replace them in the event of their death. On occasion, parents are unable to care for and nurture their children, and the children are removed from their homes and placed in foster care. When neither reunification nor adoption appears to be feasible, alternative permanency options must be explored. Often, these arrangements involve a relative or a foster parent assuming the role of legal guardian of the minor child. In fact, kin care providers make up a large proportion of appointed guardians of children. Under ideal circumstances, that arrangement provides a more stable environment for the child and also allows retention of connections to the birth family (legal guardianship does not require the termination of parental rights), which can enhance the general well-being of many children. If and when their circumstances change, birth parents can ask a court to vacate guardianship and to return the child to their custody.

The Adoption and Foster Care Analysis and Reporting System monitors trends in the guardianship of children and the characteristics of children transferred from foster care to guardianship arrangements. Compared with children who are adopted, those who become wards tend to be older and are more likely to be members of a minority group.

Guardianship of Adults

It is estimated that more than 1,250,000 adult citizens have had guardians appointed on their behalf. An important milestone occurs when a young person reaches the age of majority and parental rights are transferred from the parent to the child, unless the child has been deemed incompetent. Family members of disabled or incompetent individuals often petition for guardianship at this critical juncture. A prime concern is that the ward is unable to make wise financial decisions. The severity of the ward’s disability determines the scope of guardian-ship: Those with only mild impairments are likely to have a limited guardian, and those with severe impairments are likely to have a full guardian.

As our population ages, the number of adults with chronic diseases, functional impairments, and dementia will increase as well. Thus, guardianship is an important mechanism for protecting older adults who cannot care for themselves. In assessing the need for guardianship of an elderly person, a court must decide whether that individual has the ability to manage daily activities and to make important decisions independently. Because the loss of decisional autonomy can have serious consequences for some elderly wards, affecting their mental health, sense of personal control, and physical well-being, some commentators have suggested that guardianship should always be considered as a last resort.

Guardianship and Psychological Issues

Guardianship raises a number of interesting and complex psychological issues. The first concerns the difficulty of assessing competence and determining the appropriateness of guardianship, especially in cases involving older adults whose functional and cognitive abilities and limitations fluctuate. Judges must balance an individual’s right to self-determination against that person’s and society’s need to be protected. To assist them in these decisions, judges rely on evaluative data provided by medical or mental health professionals who have examined the proposed ward and may have conducted various psychological tests. Unfortunately, these evaluations often lack important information concerning diagnosis, prognosis, the strengths of the proposed ward, and his or her preferences.

A second concern is the ability of guardians to protect their wards without exceeding the bounds of their authority while also promoting the choices that the wards would make for themselves. Some data suggest that surrogate and proxy decision makers have difficulty predicting the choices and describing the status of the persons they represent.

A third issue concerns the impact of guardianship on the lives of the ward and the petitioner—namely, the extent to which guardianship enhances psychological and physical well-being. Undoubtedly, many people who become wards fare better with assistance than they would without, particularly in cases where abuse, neglect, or exploitation precipitated the petition. However, data also suggest that some older wards have felt angry, resentful, agitated, and upset by the guardianship proceedings and that the appointment of a guardian does not necessarily protect all of the interests of younger people with disabilities.


  1. Lisi, L., Burns, A., & Lussenden, K. (1994). National study of guardianship systems: Findings and recommendations. Ann Arbor, MI: Center for Social Gerontology.
  2. Millar, D., & Rengazlia, A. (2002). Factors affecting guardianship practices for young adults with disabilities. Exceptional Children, 68, 465—184.
  3. Moye, J. (2003). Guardianship and conservatorship. In T. Grisso (Ed.), Evaluating competencies: Forensic assessments and instruments (pp. 309-389). New York: Kluwer Academic/Plenum.
  4. Testa, M. (2004). When children cannot return home: Adoption and guardianship. The Future of Children, 14, 114-129.
  5. Wilber, K., Reiser, T., & Harter, K. (2001). New perspectives on conservatorship: The views of older adult conservatees and their conservators. Aging Neuropsychology and Cognition, 8, 225-240.

Return to the overview of Mental Health Law in Forensic Psychology.