Guardianship: Overview

As a preliminary note, states which have enacted the Uniform Probate Code or some version of that Code (UPC), refer to the position here identified as “guardian” according to the UPC terminology “conservator”. Under the UPC, “guardian” refers to a position which applies only to the person of a ward or “protected person” whether a minor or incompetent. In UPC states guardians have no authority to affect real property of the ward without court approval. The UPC designates conservators as the court-appointed official with broad powers with respect to the real property of the ward. Conservators must be appointed by a court. This appointment is evidenced by the issuance of a document called “letters”. The discussion which follows concerning “guardians” will generally apply to conservators in UPC states.


Guardianship and Conservator ship are governed by state law. These laws may vary and you must determine the specific requirements of laws in your state. Consult with your Agents National Title underwriting counsel for specific instructions. 


An understanding of the various types of guardianship, the requirements of appointment, and the requisite duties of guardians are important in the examination of title. For instance, a person may be a guardian of person or property or both. Natural guardians are considered to be the mother and father, jointly, of their own children or adopted children, during minority. All instruments executed by a natural guardian are considered to be binding on the ward. With respect to guardianship of incompetents, there must exist a petition for judicial inquiry, a certificate of an authorized physician, a court hearing before an examining committee, and a finding or adjudication by the court stating the nature and extent of the incompetence. When a person is adjudicated mentally or physically incompetent, a guardian of the person shall be appointed and a guardian of the property may also be appointed, or the named guardian may act as both. Formal guardianship of a minor is similar in nature to the requirements above with respect to the filing of a petition; a court hearing; and as adjudicated, the appointment of guardian(s) of the minor of his person, his property or both. 


Title examiners should note the references made to guardianship of person and guardianship of property.  guardianship of property. Court orders, with respect to sale, encumbrance, or lease of real property of the ward, are of great importance, regardless of whether the ward is a minor or incompetent. 


Generally, the powers of guardian – upon court approval – include the power to sell, mortgage, lease, or otherwise encumber said real property. However, in most states, such sale must be authorized or confirmed by the court. Title examination should include review of the certified petition for sale setting forth the reasons for said sale; an adequate description of the property; the price and terms of sale, mortgage or other contract; and whether the sale is private or public; as well as the subsequent terms and conditions of the court orders approving said sale, mortgage, or lease. 


With respect to entireties property, all legal or equitable interests in real and personal property owned by an incompetent for whom a guardian of property has been appointed may be sold, transferred, conveyed, or mortgaged if the spouse who is not incompetent joins in the sale, transfer, conveyance, or mortgage of the property. When both spouses are incompetent, the sale, transfer, conveyance, or mortgage must be made by the guardian(s) of each spouse. In many states, guardians are prohibited from purchasing property or borrowing money from his or her ward unless the property is sold at public sale, and then only if the guardian is a spouse, parent, child, brother, or sister of the ward or a cotenant of the ward in the property to be sold.