Dissatisfaction or Breach of Duty: When to Remove a Guardian

By Jennifer Marshall Roden, CELA

This article briefly explores the difference between simple dissatisfaction with a guardian’s performance and a breach of fiduciary duty requiring the removal of a guardian.

Guardianship cases have become a recurring hot topic in pop culture news, making their way through headlines and storylines with increasing interest among the national public. High-profile legal battles over the control of celebrity estates like that of Britney Spears and Wendy Williams, as well as portrayals in film and television such as films like “I Care a Lot,” have caused guardianship matters to resonate deeply with audiences, resulting in the general public pondering the use of guardianships and the accountability of those who serve as guardians.1

For purposes of this article, and for efficiency, the word “guardian” will be used to describe an individual or disinterested public agent appointed by a court of jurisdiction to make financial or health care decisions for another individual.2 In addition, it is assumed that the reader regularly practices in the area of guardianship and understands that a guardian cannot be appointed for an individual until that individual has been adjudicated incompetent. The definition of “incompetent” varies among states, but typically, an individual is incompetent if they lack the capacity to manage their own affairs or make informed medical decisions.3

An individual who has been adjudicated incompetent by a court is vulnerable and requires the appointment of a fiduciary. Throughout this article, an individual who has been adjudicated incompetent will be referred to as a “ward.” The purpose of this article is to briefly explore the difference between simple dissatisfaction with a guardian’s performance and a breach of fiduciary duty requiring the removal of a guardian.

Appointment Criteria

The screening and monitoring of guardians differs greatly among states. Some states prevent individuals with felonies from becoming guardians; however, very few states require guardians to undergo criminal background checks.4 The National College of Probate Judges has advised courts to request national background checks on all prospective guardians.5 Thorough background checks can prevent courts from appointing a guardian who has been convicted of a relevant crime; determined to have committed abuse, abandonment, neglect, or financial or sexual exploitation of a child, spouse, or other adult; or suspended or disbarred from law, accounting, or other professional licensing for misconduct involving financial issues.6 In other words, thorough background checks may prevent the appointment of a guardian who is more likely to breach their fiduciary duty to the ward.

Some states provide a priority list for guardian appointments while others leave the court with great discretion in choosing who will serve as a guardian. Appointing a family member or friend instead of a professional guardian may result in a guardian who has personal knowledge and insight regarding the goals and wishes of a ward in the management of their assets and decisions regarding health care; however, the family member or friend is less likely to understand the state’s laws regarding the duty to inventory the ward’s assets, file accountings, seek court approval before selling assets, etc. The lack of knowledge of the law may lead to mismanagement of assets, whether intentionally or unintentionally, and quickly reach the levels of a breach of fiduciary duty. In addition, family dynamics, personal biases, and conflicts of interest may cloud judgment and influence decision-making, leading to disputes or disagreements regarding the ward’s care, finances, or living arrangements. Appointing a family member as guardian may inadvertently strain relationships within the family, leading to increased dissatisfaction with the guardian’s actions.

Naming a disinterested third party as a guardian can offer several significant advantages, especially regarding impartiality and objectivity. Unlike family members who may be emotionally invested, a disinterested guardian can make decisions solely based on the best interests of the ward, free from familial biases or conflicts of interest. This impartial approach ensures that decisions are made objectively and in accordance with legal and ethical standards. However, naming a disinterested third-party as a guardian has its drawbacks. The ward, or the ward’s family, may feel disconnected from the guardian. There will likely be higher administrative costs associated with hiring a professional guardian, potentially impacting the ward’s financial resources. Finally, a disinterested third-party guardian may not prioritize the individual’s best interests or fulfill the guardian’s duties adequately. A disinterested third-party guardian may also make decisions without transparency, resulting in dissatisfaction among the ward and the ward’s family.

Duties of a Guardian

Guardians are held to high standards when making decisions on behalf of a ward, typically guided by legal and ethical principles. The decision-making standards of a guardian may vary depending on the jurisdiction and the specific circumstances of the individual. In general, guardians are expected to act in the best interests of the ward, prioritizing their welfare, safety, and overall well-being. This best interest standard requires guardians to consider the individual needs and preferences of the ward, weighing factors such as their physical and mental health, wishes, values, and quality of life. Additionally, guardians may be required to make decisions that are reasonable and prudent, exercising sound judgment and diligence in managing the ward’s affairs. In some cases, guardians may also be guided by substituted judgment or least restrictive alternatives standards, which aim to preserve the ward’s autonomy and dignity to the greatest extent possible while ensuring their protection and support.

The National Guardianship Association has established comprehensive standards to guide guardians in fulfilling their responsibilities effectively and ethically.7 These standards emphasize the importance of prioritizing the well-being and autonomy of the ward while ensuring that their rights and interests are protected. While the guardian seeks to act in the best interests of the ward, the guardian should take into account the ward’s wishes, values, and preferences whenever possible. The standards also emphasize the importance of transparency, accountability, and ongoing education for guardians in order to maintain their competence and uphold ethical standards in their practice.

Dissatisfaction Versus Breach of Fiduciary Duty

Dissatisfaction and breach of fiduciary duty represent distinct yet interconnected concepts within the realm of guardianship. Dissatisfaction, put simply, is the discontent or unhappiness experienced by a ward or interested party with the actions or decisions of a guardian. Dissatisfaction may stem from various factors, such as disagreements over care arrangements, financial management, or communication issues. Breach of fiduciary duty in guardianship occurs when a guardian fails to fulfill their legal and ethical obligations to act in the best interests of the ward. Breach of fiduciary duty can involve actions such as mismanagement of assets, neglect of the ward’s needs, or conflicts of interest that compromise the guardian’s ability to make impartial decisions.

While dissatisfaction may arise from perceived shortcomings or disagreements, a breach of fiduciary duty represents a violation of the guardian’s fundamental responsibility to prioritize the welfare and rights of the ward. Often, addressing dissatisfaction involves communication and negotiation. Addressing breach of fiduciary duty may require legal intervention to protect the ward’s interests and hold the guardian accountable for their actions.

As an example, dissatisfaction may arise in a guardianship when a guardian chooses to sell real property via public auction instead of listing the property with a licensed broker. Breach of fiduciary duty may arise when the guardian chooses to sell real property to a friend of the guardian for less than fair market value. The dissatisfaction of selling real property via public auction may be resolved by communicating with the ward’s family the benefits of selling the real property via public auction (for example leading to a quick closing, reduced costs, the need for funds quickly to pay bills). The guardian’s breach of fiduciary duty by selling his ward’s real property for less than fair market value may require the removal of the guardian and a civil judgment for monetary damages caused to the ward.

Removing a Guardian

A breach of fiduciary duty occurs in a guardianship when the guardian breached the guardianship relationship by engaging in conduct that falls below the standard of care expected of a fiduciary, such as mismanagement of assets, neglect of the ward’s needs, or failure to disclose conflicts of interest. The breach will result in harm or detriment to the ward, either financially, emotionally, or in terms of their overall well-being.

When there is evidence of significant misconduct, negligence, or incapacity on the part of the guardian, which compromises the guardian’s ability to fulfill their fiduciary duties effectively, the guardian should be removed. Instances of financial exploitation, failure to provide adequate care or support, conflicts of interest, or a lack of communication and cooperation with other involved parties are all reasons to seek the removal of the guardian.

Many states have adopted laws that provide the court with significant guidance in the removal of guardians. For example, in North Carolina, a duty is imposed on the clerk of court to remove a guardian or to take other action necessary to protect a ward if any one of 17 elements are met (e.g., the guardian wastes the ward’s money, the guardian mismanages the ward’s assets, or the guardian fails to file an accounting).8 Other states’ laws provide little guidance, but leave the discretion to remove a guardian in the hands of the court. For example, Washington state requires the court to hold a hearing whenever “[p]etition of the adult, guardian, or person interested in the welfare of the adult, which contains allegations that, if true, would support a reasonable belief that removal of the guardian and appointment of a successor guardian may be appropriate… .”9

Once a complaint or petition is filed with a court seeking the removal of a guardian, the court may appoint a guardian ad litem, special master, or visitor to investigate the complaint. Some courts may enter a show cause order or set a hearing. Courts have a range of statutory sanctions for cases of breach of fiduciary duty, including fines, contempt (declaring that a guardian has disobeyed court orders and will be punished), denial of compensation, suspension, removal, and more.

Conclusion

Fiduciary duties are among the highest duties in law. When the interests of vulnerable individuals are at stake, fiduciaries should be mindful of a sacred responsibility of care and competence. Fiduciary discretion is often accompanied by a reasonableness standard, which may lead to differences of opinion, disagreements, and expensive disputes. Dissatisfaction with the work of a guardian typically is not enough to remove a guardian from their court-appointed position. However, if the actions of a guardian reach the level of a breach of fiduciary duty, causing harm to the ward, the courts have a duty to remove that guardian and impose other statutory remedies or sanctions to protect the ward.