Section 5-209
(a)
A guardian of a ward has the powers and responsibilities of a parent regarding the ward's support, care, education, health and welfare. A guardian shall act at all times in the ward's best interest and exercise reasonable care, diligence and prudence.
(b)
In particular and without qualifying the foregoing, a guardian of a ward or incapacitated person shall:
- (1) if consistent with the terms of any order by a court of competent jurisdiction take custody of the person of the ward or incapacitated person and establish his place of abode within or without the commonwealth;
- (2) become or remain personally acquainted with the ward or incapacitated person and maintain sufficient contact with the person to know of his capacities, limitations, needs, opportunities, and physical and mental health;
- (3) take reasonable care of the personal effects and commence protective proceedings if necessary to protect other property of the ward or incapacitated person;
- (4) apply any available money of the ward or incapacitated person to his current needs for support, care, education health and welfare; provided that if any person has a legal duty to support a minor and has sufficient funds, the minor's funds are not to be used to discharge the legal obligation of support without prior order of the court unless the court determines that the minor's funds may be used for support;
- (5) conserve any excess money of the person for his future needs, but if a conservator has been appointed for the estate of the ward or incapacitated person, the guardian, at least quarterly, shall pay to the conservator money of the ward or incapacitated person to be conserved for his future needs; and
- (6) report the condition of the ward or protected person and of his estate that has been subject to the guardian's possession or control, as ordered by the court on petition of any person interested in the respondent's welfare or as required by court rule, but not less than annually.
(c)
A guardian of a ward or incapacitated person may:
- (1) apply for and receive money for the support of the ward or incapacitated person otherwise payable to his parent, guardian, or custodian for his support under the terms of any statutory benefit or insurance system or any private contract, devise, trust, conservatorship, or custodianship;
- (2) if no conservator for the estate of the ward or incapacitated person has been appointed, institute proceedings, including administrative proceedings, or take other appropriate action to compel the performance by any person of a duty to support the ward or incapacitated person or to pay sums for his benefit;
- (3) if consistent with the terms of any order by a court of competent jurisdiction and sections 5–306A and 5–309, consent to medical or other professional care, treatment, or advice for the ward or incapacitated person without liability by reason of the consent for injury to the ward or incapacitated person resulting from the negligence or acts of third persons unless a parent would have been liable in the circumstances;
- (4) consent or refuse to consent to the marriage, divorce or adoption of the ward or incapacitated person;
- (5) if reasonable under all of the circumstances, delegate to the ward or incapacitated person certain responsibilities for decisions affecting his well-being; and
- (6) utilize the services of agencies and individuals to provide necessary and desirable social and protective services of different types appropriate to such person including, but not limited to, counseling services, advocacy services, legal services, and other aid as the guardian deems to be in the interest of such person.
(d)
A guardian is entitled to reasonable compensation for services as guardian and to reimbursement for room, board and clothing personally provided to the ward or incapacitated person, but only as approved by order of the court and only from the person's estate. If a conservator, other than the guardian or one who is affiliated with the guardian, has been appointed for the estate of the person, reasonable compensation and reimbursement to the guardian may be approved and paid by the conservator without order of the court controlling the guardian.
(e)
A guardian need not use the guardian's personal funds for the ward or incapacitated person's expenses. A guardian is not liable to a third person for acts of the respondent solely by reason of the relationship.
Comment
Subsection (a) specifies that the parental powers and responsibilities entailed in a guardianship are those concerned with the ward or incapacitated person's “support, care, education health and welfare.” These terms, when read with subsection (b), obviously refer to all kinds of considerations that should be weighed and implemented on behalf of the person by one invested with legal authority to control the respondent's activities.
Subsection (b)(2) reflects a consensus that a person who accepts a guardianship for a minor should be forewarned by explicit statutory language that the position entails responsibilities to make and maintain personal contact with the ward or incapacitated person.
The basic duties of a guardian are described in the mandates of subsection (b). Subsection (c) outlines optional authority that is extended to every guardian by the statute. Subsection (d), dealing with the delicate question of compensation for a guardian, requires that a guardian obtain approval from an independent conservator of the minor's estate or from the court before taking sums as compensation from funds of the minor that have been received by the guardian. In contrast to 1969 UPC § 5-312(a)(4) which permitted a guardian for an incapacitated person to take funds of the ward or incapacitated person by way of reimbursement for personal funds previously expended for certain purposes, this section requires court approval before any guardian's claim for reimbursement can be satisfied otherwise than through a conservator. Note, however, that no advance court approval is required in order to permit a guardian to use available funds of the ward or incapacitated person his or her current needs as provided in subsection (b)(4).
The powers of a guardian regarding property of the ward or incapacitated person are quite limited. Note, also, that the section does not encourage a guardian to apply to the appointing court for additional property power. Rather, the provisions are designed to encourage use of a protective proceeding under § 5-401 if property powers beyond those statutorily available to a guardian are needed. In this connection, it may be observed that subsection (c)(3), which contains one of the section's few references to use of the courts by a guardian, authorizes a guardian to institute proceedings to enforce a duty to support or pay money only if there is no conservator for the estate of the ward or incapacitated person.
If the circumstances of a minor dictate that authority to control both person and property be obtained, protective proceedings under § 5-401 et seq. are indicated. In addition, the provisions of this Article enable interested persons to obtain appointment of the same or different persons as guardian and conservator for a minor, however, 2 proceedings are necessary where a single person is to serve in both capacities.
The language regarding a guardian's liability to third persons for acts of the incapacitated person is intended merely to prevent any attribution of liability to a guardian on account of a incapacitated person's acts that might be thought to follow from the guardian's legal control of the incapacitated person. It is not intended to exonerate a incapacitated person or the incapacitated person's own estate from the consequences of the incapacitated person's own negligence.
Massachusetts comment
Unlike a Massachusetts Guardian of Minor, G.L. c. 201, § 4, the UPC guardian does not manage the minor's estate. Such management is the responsibility of a Conservator. The duties of the Guardian are to become personally involved in the care of the individual. The Code requires an annual report of the condition of the minor, but not necessarily in the same detail as is required of a guardian of an incapacitated person under 5-309(b). Sub-section (c)(6) is added to preserve G.L. c. 201 § 6A(g) and to apply it to all guardianships, not just guardianships of the mentally retarded.
Note that subsections (b), (c), (d) and (e) apply both to guardians of minors and guardians of incapacitated persons.