Encyclopedia of Psychology and Law

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.

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 con-

cerning a relative, though public guardians are some-

times 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 indi-

vidual’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 guardian-

shipand 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 reten-

tion of connections to the birth family (legal guardian-

ship 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 trans-

ferred 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 impor-

tant 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 incompe-

tent 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 impair-

ments 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 indi-

vidual has the ability to manage daily activities and to

make important decisions independently. Because the

loss of decisional autonomy can have serious conse-

quences 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.

Psychological Issues

Guardianship raises a number of interesting and complex

psychological issues. The first concerns the difficulty

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