GUARDIAN
guardian,n.1. One who has the legal authority and duty to care for another’s person or
property, esp. because of the other’s infancy, incapacity, or disability. • A guardian may be
appointed either for all purposes or for a specific purpose. — Abbr. gdn. — Also termed custodian.
See CONSERVATOR. Cf. WARD(1). [Cases: Guardian and Ward 1; Mental Health 101. C.J.S.
Insane Persons §§ 108, 110, 143.]
chancery guardian (chan-s<<schwa>>r-ee). A guardian appointed by a court of chancery to
manage both the person and the estate of the ward. [Cases: Guardian and Ward 10, 17, 36.]
domestic guardian.A guardian appointed in the state in which the ward is domiciled.
foreign guardian.A guardian appointed by a court in a state other than the one in which the
ward is domiciled. • A foreign guardian cares for the ward’s property that is located in the state of
appointment. [Cases: Guardian and Ward 166; Mental Health 194.]
general guardian.A guardian who has general care and control of the ward’s person and estate.
[Cases: Guardian and Ward 29, 36; Mental Health 495. C.J.S. Insane Persons §§ 271–273.]
guardian ad litem (ad lI-tem or- t<<schwa>>m). A guardian, usu. a lawyer, appointed by the
court to appear in a lawsuit on behalf of an incompetent or minor party. — Abbr. GAL. — Also
termed special advocate; special guardian; law guardian. Cf. NEXT FRIEND; attorney ad litem
under ATTORNEY. [Cases: Infants 76, 205; Mental Health 485. C.J.S. Infants §§ 51–52, 62,
64–67, 222; Insane Persons § 264.]
“[I]t is necessary to determine whether the lawyer has been appointed as a guardian ad litem
(GAL) charged with representing the child’s best interests, or as an advocate, serving as counsel to
the child …. From the distinction between guardian and advocate flow a series of important
consequences, including such matters as whether the attorney may file motions and examine
witnesses, whether the attorney may file a report with the court, and whether the attorney may
testify. Moreover, in most jurisdictions a GAL has an absolute quasi-judicial immunity for
lawsuits for negligence …. Although a non-lawyer cannot serve as counsel to the child, such an
individual might be a GAL or ‘special advocate’ in some states. Courts have struggled to clarify
these roles, and define how children’s representatives may participate in different types of
proceedings.” Homer H. Clark Jr. & Ann Laquer Estin, Domestic Relations: Cases and Problems
1078 (6th ed. 2000).
guardian by custom.Hist. A person who, under local custom, had the right to act as a minor’s
guardian.
guardian by election.A guardian chosen by a ward who would otherwise be without one.
[Cases: Guardian and Ward 19.]
guardian by estoppel.See quasi-guardian.
guardian by nature.Hist. The parental guardian of an heir apparent who has not yet reached
the age of 21. • Although the common law made the father the guardian by nature and the mother
only after the father’s death, most states have given both parents equal rights of guardianship over
their children (see, e.g., N.Y. Dom. Rel. Law § 81). — Also termed natural guardian. [Cases:
Guardian and Ward 4.]
guardian by nurture.Hist. The parental guardian of a child who is not the heir apparent,
lasting until the child reaches the age of 14. — Also termed guardian for nurture.
“There are also guardians for nurture, which are, of course, the father or mother, till the infant
attains the age of fourteen years and, in default of father or mother, the ordinary usually assigns
some discreet persons to take care of the infant’s personal estate, and to provide for his
maintenance and education.” 1 William Blackstone, Com-mentaries on the Laws of England 449
(1765).
guardian by statute.See statutory guardian.
guardian de son tort (d<<schwa>> sawn [or son] tor[t]). See quasi-guardian.
guardian for nurture.See guardian by nurture.
guardian in chivalry.Hist. A guardian who, by virtue of knight’s service, had custody of the
body and lands of a male heir under 21 or a female heir under 14. • This type of guardian had no
accountability for profits.
guardian in socage.New York law. A guardian for a child who has acquired lands by descent.
- A guardian is usu. a relative who could not possibly inherit from the child. This type of
guardianship applies to both the person and the property of the child and, historically, lasted only
until the child was 14, when the child was allowed to select a guardian; now it lasts until the child
reaches age 18 or is emancipated.
guardian of property.See guardian of the estate.
guardian of the estate.A guardian responsible for taking care of the property of someone who
is incapable of caring for his or her own property because of infancy, incapacity, or disability. —
Also termed guardian of property.
guardian of the person.A guardian responsible for taking care of someone who is incapable of
caring for himself or herself because of infancy, incapacity, or disability.
law guardian.See guardian ad litem.
natural guardian. 1.Hist. The eldest son’s father, until the son turned 21. 2. In the absence of
statute, the father of a legitimate child until the child reaches the age of 21. • A father of
illegitimate children may be appointed as their guardian upon the mother’s death. 3. Most
commonly and by statute, either the father or the mother of a minor child — each bearing the title
simultaneously. • If one parent dies, the other is the natural guardian. [Cases: Parent and Child 1.
C.J.S. Parent and Child §§ 1–12, 201.]
partial guardian.A guardian whose rights, duties, and powers are strictly limited to those
specified in a court order.
quasi-guardian. A guardian who assumes that role without any authority. • Such a person may
be made to account as guardian. — Also termed guardian by estoppel; guardian de son tort. [Cases:
Guardian and Ward 7.]
special guardian. 1. A guardian who has special or limited powers over the ward’s person or
estate. • Examples are guardians who have custody of the estate but not of the person, those who
have custody of the person but not of the estate, and guardians ad litem. — Also termed (in civil
law) curator ad hoc. See CURATOR(2).2. See guardian ad litem. [Cases: Mental Health 495.
C.J.S. Insane Persons §§ 271–273.]
standby guardian.A parent-designated guardian who is appointed to assume responsibility for
a child at a future date if the child’s parent becomes incapable of caring for the child but who does
not divest the parent of custodial rights. • Several states have enacted statutes providing for a
standby guardian in the case of a terminally ill single parent. A standby guardian assumes
responsibility for a child during periods of the parent’s incapacity and upon the parent’s death.
statutory guardian.A guardian appointed by a court having special statutory jurisdiction. —
Also termed guar-dian by statute.
successor guardian.An alternate guardian named in a parent’s will against the possibility that
the first nominee cannot or will not serve as guardian.
testamentary guardian.A guardian nominated by a parent’s will for the person and property of
a child until the latter reaches the age of majority.
2.Hist. A mesne lord who was entitled to treat an infant heir’s lands for all practical purposes
as the lord’s own, enjoying fully their use and whatever profits they yielded. • At the end of the
guardianship, when the heir reached majority, no accounting was owed by the mesne lord. [Blacks Law 8th]