Guardian in United States

Guardian Definition

One who legally has the care and management of the person, or the estate, or both, of a child during its minority. Reeve, Dom. Rel. 311. A person having the control of the property of a minor without that of his person is known in the civil law, as well as in some of the states of the United States, by the name of curator. 1 Lee. Elm. 241; Rev. St. Mo. 1855, p. 823. Guardians are also sometimes appointed of idiots, spendthrifts, etc. The general classes of guardians are:
(1) Guardian by chancery. This guardianship, although unknown at the common law, is well established in practice now. It grew up in the time of William III., and had its foundation in the royal prerogative of the king as parens patriae. 2 Fonbl. Eq. (5th Ed.) 246. This power the sovereign is presumed to have delegated to the chancellor. 10 Ves. 63; 2 P. Wms. 118; Reeve, Dom. Rel. 817. By virtue of it, the chancellor appoints a guardian where there is none, and exercises a superintending control over all guardians, however appointed, removing them for misconduct, and appointing others in their stead. Co. Litt. 89; 2 Bulst. 679; 1 P. Wms. 703; 8 Mod. 214; 1 Ves. Jr. 160; 2 Kent, Comm. 227. This power, in the United States, resides in courts of equity (1 Johns. Ch. [N. Y.] 99; 2 Johns. Ch. [N. Y.] 439), and in probate or surrogate courts (2 Kent, Comm. 226; 30 Miss. 458; 3 Bradf. Sur. [N. Y.] 133).
(2) Guardian by nature. The father, and, on his death, the mother. 2 Kent, Comm. 220; 2 Root (Conn.) 320; 7 Cow. (N. Y.) 36; 2 Wend. (N. Y.) 158; 4 Mass. 675.
(3) Guardian by nurture. This guardianship belonged to the father, then to the mother. The subject of it extended to the younger children, not the heirs apparent. In this country it does not exist, or, rather, it is nierged in the higher and more durable guardianship by nature, because all the children are heirs, and, therefore, the subject of that guardianship. 2 Kent, Comm. 221; Reeve, Dom. Rel. 315; 6 Ga. 401. It extended to the person only (6 Conn. 494; 40 Eng. Law & Eq. 109), and terminated at the age of fourteen (1 Bl. Comm. 461).
(4) Guardian in socage. This guardianship arose when socage lands descended to an infant under fourteen years of age; at which period it ceased if another guardian was appointed, otherwise it continued. And. 313; 5 Johns. (N. Y.) 66. The person entitled to it by common law was the next of kin, who could not by any possibility inherit the estate. 1 Bl. Comm. 461. Although formerly recognized in New York, it was never common in the United States (5 Johns. [N. Y.] 66; 7 Johns. [N. Y.] 157), because, by the statute of descents generally in force in this country, those who are next of kin may eventually inherit. Wherever it has been recognized, it has been in a form differing materially from its character at common law. 15 Wend. (N. Y.) 631.
(5) Guardians by statute. These are of two kinds: First, testamentary; second, those appointed by court in pursuance of some statute.
(6) Testamentary guardians. These are appointed by the deed or last will of the father, and they supersede the claims of all other guardians, and have control of the person and the real and personal estate of the child till he arrives at full age.
(7) Guardians appointed by court. The greater number of guardians among us, by far, are those appointed by court, in conformity with statutes which regulate their powers and duties. In the absence of special provisions, their rights and duties are governed by the general law on the subject of guardian and ward.

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Legal Issue for Attorneys

One who legally has the care and management of the person, or the estate, or both, of a child during its minority. Reeve, Dom. Rel. 311. A person having the control of the property of a minor without that of his person is known in the civil law, as well as in some of the states of the United States, by the name of curator. 1 Lee. Elm. 241; Rev. St. Mo. 1855, p. 823. Guardians are also sometimes appointed of idiots, spendthrifts, etc. The general classes of guardians are:
(1) Guardian by chancery. This guardianship, although unknown at the common law, is well established in practic
e now. It grew up in the time of William III., and had its foundation in the royal prerogative of the king as parens patriae. 2 Fonbl. Eq. (5th Ed.) 246. This power the sovereign is presumed to have delegated to the chancellor. 10 Ves. 63; 2 P. Wms. 118; Reeve, Dom. Rel. 817. By virtue of it, the chancellor appoints a guardian where there is none, and exercises a superintending control over all guardians, however appointed, removing them for misconduct, and appointing others in their stead. Co. Litt. 89; 2 Bulst. 679; 1 P. Wms. 703; 8 Mod. 214; 1 Ves. Jr. 160; 2 Kent, Comm. 227. This power, in the United States, resides in courts of equity (1 Johns. Ch. [N. Y.] 99; 2 Johns. Ch. [N. Y.] 439), and in probate or surrogate courts (2 Kent, Comm. 226; 30 Miss. 458; 3 Bradf. Sur. [N. Y.] 133).
(2) Guardian by nature. The father, and, on his death, the mother. 2 Kent, Comm. 220; 2 Root (Conn.) 320; 7 Cow. (N. Y.) 36; 2 Wend. (N. Y.) 158; 4 Mass. 675.
(3) Guardian by nurture. This guardianship belonged to the father, then to the mother. The subject of it extended to the younger children, not the heirs apparent. In this country it does not exist, or, rather, it is nierged in the higher and more durable guardianship by nature, because all the children are heirs, and, therefore, the subject of that guardianship. 2 Kent, Comm. 221; Reeve, Dom. Rel. 315; 6 Ga. 401. It extended to the person only (6 Conn. 494; 40 Eng. Law & Eq. 109), and terminated at the age of fourteen (1 Bl. Comm. 461).
(4) Guardian in socage. This guardianship arose when socage lands descended to an infant under fourteen years of age; at which period it ceased if another guardian was appointed, otherwise it continued. And. 313; 5 Johns. (N. Y.) 66. The person entitled to it by common law was the next of kin, who could not by any possibility inherit the estate. 1 Bl. Comm. 461. Although formerly recognized in New York, it was never common in the United States (5 Johns. [N. Y.] 66; 7 Johns. [N. Y.] 157), because, by the statute of descents generally in force in this country, those who are next of kin may eventually inherit. Wherever it has been recognized, it has been in a form differing materially from its character at common law. 15 Wend. (N. Y.) 631.
(5) Guardians by statute. These are of two kinds: First, testamentary; second, those appointed by court in pursuance of some statute.
(6) Testamentary guardians. These are appointed by the deed or last will of the father, and they supersede the claims of all other guardians, and have control of the person and the real and personal estate of the child till he arrives at full age.
(7) Guardians appointed by court. The greater number of guardians among us, by far, are those appointed by court, in conformity with statutes which regulate their powers and duties. In the absence of special provisions, their rights and duties are governed by the general law on the subject of guardian and ward.

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This definition of Guardian is based on The Cyclopedic Law Dictionary. This entry needs to be proofread.

Plain-English Law

Guardian as defined by Nolo’s Encyclopedia of Everyday Law (p. 437-455):

An adult who has been given the legal right by a court to control and care for someone known as a ward. The ward may be either a minor child or an incapacitated adult. The guardian may make personal decisions on behalf of the ward (a personal guardian), manage the ward’s property (a property guardian or guardian of the estate), or both. guardian of the estate See guardian.

Introduction to Guardian

Guardian (law), in United States law, individual who is entrusted with the care of a person, that person’s property, or both, when such person, by statutory definition or judicial finding, is incapable of administering his or her own affairs, whether because of age, inability to understand, or lack of self-control. The usual form of guardianship is that of individuals considered minors under state statutes.

In most states the appointment of guardians and their duties to their wards are regulated by statute. In general, such statutes vest jurisdiction over appointment and control of guardians in the courts, usually in courts of probate in the case of the death of the parent. The legal right to guardianship of minor children, as at common law, normally belongs to the surviving parent. Whether such surviving parent will be appointed guardian, however, depends on the determination of the court as to whether such action will best promote the child’s welfare under all circumstances. The laws of most states authorize the surviving parent to designate a guardian for minors by will, known as a testamentary guardian. A guardian may be appointed by a court when the parents of a minor child are still living if the parents appear unfit for control of the minor or have interests adverse to it.

Guardians appointed by a court or by will have control of the ward’s person and entire property. It is the duty of the guardian to take possession and control of the ward’s personal property, including any rents and profits from real estate; to keep, invest, and protect them; and to render a true account when the ward comes of age or at the demand of the court.

When a cause of action exists directly in favor of a minor or when an action or lawsuit is brought against a minor, in some states the court will appoint a guardian to protect the minor’s interests. In estate-administration proceedings in which a minor is involved, the probate courts appoint a special guardian, usually an attorney, for the purpose of protecting the minor’s interests.” (1)

Basic Meaning of Guardian

Guardian means: a judicial appointment of a person to administer the affairs of another person who is incompetent by virtue of age or legal disability.

Resources

Notes and References

• Information about Guardian in the Encarta Online Encyclopedia

Guide to Guardian