Prepared for NAPAS by

Center for Public Representation

Northampton, Massachusetts

Question

    Does a guardian have the legal authority to control with whom an adult ward can spendtime and associate?

Answer

    As advocates we may find the very possibility that a guardian has the authority tochoose a ward's friends and associates disturbing and begin with a bias that the answer shouldbe no. While this may be an appropriate and useful advocacy position, the answer to this legalquestion is not at all clear. The answer will be informed by an analysis of Constitutional law,state law, the nature and scope of the guardianship order, the age of the ward, as well ashis/her ability to express clear preferences. State constitutions, statutes and regulations mustbe part of any analysis of this question. Some states' "mental health patients'" rights statutes,for example, Massachusetts recognize the fundamental nature and the right of association anddo not permit its restriction for any individual, unless there is a compelling clinicaljustification.

    An individual's ability to spend time with and be in relationship with whomever he/shechooses springs from the Constitutional right to free association. Arguably, no state civil courtorder of any type can interfere with an individual's right to exercise his/her constitutionalrights. However, there are numerous state law guardianship cases that appear to do just that.

    One of the most frequently litigated issues is whether a guardian has the authority toinitiate divorce proceedings on behalf of a ward. The Illinois Supreme Court has recognized astrong majority rule that, absent statutory authorization, a guardian cannot maintain an action,on behalf of a ward, for the dissolution of a ward's marriage. Wood v. Beard(Fla.Dist.Ct.App.1958), 107 So.2d 198, 200; Phillips v. Phillips (1947), 203 Ga. 106, 108-09, 112, 45 S.E.2d 621, 622, 624; State ex rel. Quear v. Madison Circuit Court (1951), 229Ind. 503, 504-05, 99 N.E.2d 254, 255; Mohler v. Shank's Estate (1895), 93 Iowa 273, 277-79, 61 N.W. 981, 983; Birdzell v. Birdzell (1885), 33 Kan. 433, 435-36, 6 P. 561, 561-62; Johnson v. Johnson (1943), 294 Ky. 77, 78, 170 S.W.2d 889, 889-90; Stevens v. Stevens(1934), 266 Mich. 446, 254 N.W. 162; Higginbotham v. Higginbotham (Mo.Ct.App.1940),146 S.W.2d 856, 857; In re Jennings (1981), 187 N.J.Super. 55, 58-59, 453 A.2d 572, 574;Mohrmann v. Kob (1943), 291 N.Y. 181, 189-90, 51 N.E.2d 921, 924-25; Freeman v. Freeman (1977), 34 N.C.App. 301, 302-03, 237 S.E.2d 857, 858; Hart v. Hart(Tex.Ct.App.1986), 705 S.W.2d 332; cf. Campbell v. Campbell (1941), 242 Ala. 141, 142,5 So.2d 401, 401-02 (stating the general rule but finding statutory authorization); Cohn v.Carlisle (1941), 310 Mass. 126, 128, 37 N.E.2d 260, 262 (finding statutory authorization); Kuta v. Kuta (1951), 154 Neb. 263, 264-66, 47 N.W.2d 558, 559 (finding statutoryauthorization). In re Marriage of Drews, 115 Ill.2d 201, 503 N.E.2d 339, 104 Ill.Dec. 782(Sup. Ct. Ill. 1986). Rehearing Denied Jan. 30, 1987. The Court, however, held thatannulment of a marriage was within the authority of the guardian under state law. Presumably, this power is based on the premise that the ward does not have the legal authorityto enter a contract.

    The parens patriae authority of the state to impose guardianship on individuals determinednot to be competent carries with it all of the trappings of best interest. However,Courts often couple the best interest standard with that of the individual's expressed preference. In one guardianship case taking many twists and turns over a seven year period, a lesbian whohad experienced a head injury in an automobile accident and whose family, although initially aco-guardian with her lover, moved for exclusive guardianship and the right to prohibit anycontact between their daughter and her lover. The modification of the guardianship and therestriction on contact was originally permitted by the trial court and the Minnesota Court ofAppeals, based on a finding that it was in the ward's best interest and she was incapable ofexpressing a preference. Ultimately, the woman's lover obtained guardianship based on asubsequent determination by the Minnesota Court of Appeals that it was both the ward'spreference and also in her best interest. In re Guardianship of Kowalski, 382 N.W.2d 861,(Minn. Ct. App. 1986), 392 N.W.2d 310, (Minn. Ct. App. 1986), and 478 N.W.2d 790 (Minn.Ct. App. 1991). See also, In the Matter of the Guardianship of Miller 1988 WL 106662, (OhioApp. 4 Dist.) (visitation of a stroke victim by previous common-law husband was not in theward's best interest and was consistent with the ward's preference). In the Matter of M.R., 628A.2d 1274 (NJ 1994) (overruling trial court's order placing adult ward with mother when wardhad expressed preference to live with father). However, the best interest standard is alive andat times is the only consideration in making a determination regarding association. In the Matterof Abbott, 1995 WL 419968 (Del. Ch.), (court applied best interest standard exclusively indetermining whether to permit visitation and imposing limitations on frequency).

    There is a growing recognition in case law that guardianship should be narrowly tailoredand that the least restrictive approach should be adopted when limiting an individual's controlover his/her life. In the Matter of Guardianship of Braaten, 502 N.W.2d 512 (Sup Ct. N.D.,1993), a case brought by the North Dakota P&A, the parents and guardians of an adult womanwith mild mental retardation sought to restrict her smoking and to keep her from a boyfriendthey believed to be abusive. The case challenged the broad general guardianship order that hadbeen entered by the trial court as there was only evidence of incompetence regarding medicaltreatment. The Court found that this broad guardianship was not the least restrictive and thatthe guardianship order should be narrowed to only encompass medical decisions. See also, Inthe Matter of the Guardianship of Hedin v. Gonzales, 528 N.W.2d 567 (Sup. Ct. Iowa 1995);In re the Matter of Boyer, 636 P.2d. 1085 (Sup. Ct. Iowa, 1981).

    There is no simple answer to whether a guardian can limit a ward's association. Thisquestion is even more complicated for children. To minimize the likelihood of these possibleconflicts, P&As should be vigilant in their efforts to defend against unnecessary guardianshipsor to have guardianships that may be appropriate to be as narrowly tailored as possible.