What is the true role of a guardian?

Lawrence A. Frolik (Professor of Law, University of Pittsburgh) has recently published his article entitled Is a Guardian the Alter Ego of the Ward?, 37 Stetson L. Rev. 53 (2007).

Here is an excerpt from his article:

I want to ask a simple question. Just what is the relation of a guardian to the ward? Certainly, it is a fiduciary relationship, with the guardian having a duty of care and loyalty to the ward, but that does not quite capture it. A guardian is a particular type of fiduciary; one different in authority and accountability from, say, a trustee acting under a trust instrument or a corporate director whose authority derives from the shareholders and who is accountable to them. The fiduciary duties of both a trustee and corporate director are created by private arrangements. Courts become involved, if at all, only when the private arrangement breaks down–when those to whom the fiduciary owes a relationship, the shareholder or the beneficiary of the trust, do not receive satisfaction from the fiduciary.

In contrast, a guardian and a guardianship are creatures of the court; created by it and answerable to it. The guardian is appointed by the probate court to guard the interests of the ward and use the ward’s assets and income to support and maintain the ward. This relationship sounds very much like a parent’s duties to a minor child, except that the parent uses the parent’s money rather than the child’s money. Yet the relationship is not quite parallel because a parent has a protected sphere of action that gives the parent some degree of nonrenewable discretion over the life of the child. This is not so with a guardian. * * *

The need for property management of the assets of incapacitated persons, while not as dramatic a need as healthcare decisionmaking, was compelling enough to justify the creation of the durable power of attorney.  Once courts recognized the right of agents to act solely in the best interests of the principal, it was only a short step to permitting guardians to act as if they were agents, especially as the need for a guardian merely represented a failure to use a durable power of attorney. The result has been a subtle, but significant, change in the role of guardians from agent of the court to representative of the interests of the ward. To answer the question posed by the title of this Article, yes, a guardian is now apparently the alter ego of the ward.