Guardians Can’t Do Everything
Sometimes a guardian cannot solve the ward’s problems, even if a professional and legal decision maker.
There are limits to what a guardian can do, and at times having a guardian doesn’t benefit the individual.
Here are some areas where a guardian’s authority may be limited.
- Change a ward’s behavior. Many people want a guardian to change a ward’s behavior and make them act in a particular way, especially when the person is being non-compliant or is involved in criminal activity. A guardian cannot stop someone from being self destructive, participating in criminal behaviour, nor force participation in therapy or programming. If the desired result is to change behaviour or force compliance, guardianship is not the answer.
- Forcing medication. This usually involves persons with mental illness and the use of psychotropic drugs, which can only be done by a Court order, with or without a guardian. An attorney or other professional guardian will not supervise daily medication administration.
- Force a ward to stay at a facility. Usually there is a right to free movement and in reality a guardian cannot stop someone from walking away from a placement. Locked facilities may not be appropriate for all wards.
- Restrict civil liberties. This only happens if the ward cannot appreciate the rights and responsibilities.
- Marriage Guardian must agree, or obtain a court order.
- Divorce Usually no dissolution is granted without concurrence of ward
and guardian in Domestic Court. The ward receives independent legal
representation.
- Sterilization/Abortion There is a sacred right to privacy, which
requires a court order with counselling and representation for the ward.
- Birth Control/Sexual Activity This is a personal right protected by the
constitution. Instances of exploitation and coercion need to be evaluated.
- Voting The ward must meet the same voter registration requirements as
other voters. There are usually no mental capacity tests or the
requirement to read or write. Guardian can seek to cancel voter
registration by court order.
- Driving People with disabilities may drive. Guardian can seek to
terminate the licensure, and is required to maintain insurance for a ward
that drives.
- Other Freedoms The right to communicate without monitoring, right to
free speech, right to privacy and the right to freedom of religion.
- ECT. A guardian must have a court order to consent to ECT (electro-convulsive therapy.)
- Decisions on matters for which the guardian has no authority. The ability to make decisions is strictly limited by the Probate Court. The ward retains the rights that the court has not allocated to the guardian.
Use guardianship only when it can be effective and there is no other LESS RESTRICTIVE MEANS AVAILALBLE. Look to relationship development, alternative treatment, alternative residence, or programming. The problem may be a personality issue and not a legal impairment.
Guardianship is serious legal action which removes rights from an individual who has a mental impairment. Use with Care!
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