A legal guardian is a person who has the legal authority (and the corresponding duty) to care for the personal and property interests of another person, called a ward. Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or disability. Most countries and states have laws that provide that the parents of a minor child are the legal guardians of that child, and that the parents can designate who shall become the child’s legal guardian in the event of death.
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. A guardian appointed to represent the interests of a person with respect to a single action in litigation is a guardian ad litem.
Some jurisdictions allow a parent of a child to exercise the authority of a legal guardian without a formal court appointment. In such circumstances the parent acting in that capacity is called the natural guardian of that parent’s child.
Guardians ad litem are often appointed in under-age-children cases, to represent the interests of the minor children. Any person, with training and approval, may be appointed as a Guardian Ad Litem. Qualifications vary by state, ranging from volunteers to social workers to attorneys to others with the appropriate qualifications. The Guardian Ad Litem’s only job is to represent the minor children’s best interest and advise the court. The GAL speaks to the court for the child. In many states the GAL must go through training and course work to qualify for this responsibility.
Guardians Ad Litem are also appointed in cases where there has been an allegation of child abuse, child neglect, PINS, juvenile delinquency, 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 advocates or attorneys. For example, in North Carolina, trained Guardian ad Litem 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 homes for children.
Legal Guardians may also be appointed in guardianship cases for adults (see also conservatorship). For example, parents may start a guardianship action to become the guardians of a developmentally disabled child when the child reaches the age of majority. Or, children may need to file a guardianship action for a parent when the parent has failed to prepare a power of attorney and now has dementia.
Guardians ad litem can be appointed by the court to represent the interests of mentally ill or disabled persons. The Code of Virginia 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.