Ethical Principles/Standards

State laws typically contain provisions that guardians must follow, including expectations to inform the court of the actions they have taken and decisions they have made.  State statutes often do not provide guardians guidance about ethical decision-making principles and standards to ensure the guardian is engaged in ethical decision-making. Some states have adopted state-specific ethics and standards for professional and/or family guardians (state statutes, judicial orders, and administrative rules should be consulted in each jurisdiction). 

The National Guardianship Association (NGA) has approved ten ethical principles that apply to all decisions made by a guardian. NGA has also adopted Standards of Practice for personal, medical, and financial decision-making by guardians. The NGA has worked with many jurisdictions to facilitate the adoption of state-specific ethics and standards for guardians.  NGA has also created Fundamentals of Guardianship as a concise guide to guardians' roles and responsibilities

National Guardianship Association Ethical Principles:

1. A guardian treats the person with dignity. (Standard 3)

2. A guardian involves the person to the greatest extent possible in all decision making. (Standard 9)

3. A guardian selects the option that places the least restrictions on the person’s freedom and rights.

(Standard 8)

4. A guardian identifies and advocates for the person’s goals, needs, and preferences. (Standard 7)

5. A guardian maximizes the self-reliance and independence of the person. (Standard 9)

6. A guardian keeps confidential the affairs of the person. (Standard 11)

7. A guardian avoids conflicts of interest and self-dealing. (Standard 16)

8. A guardian complies with all laws and court orders. (Standard 2)

9. A guardian manages all financial matters carefully. (Standard 18)

10. A guardian respects that the money and property being managed belongs to the person. (Standard 17)

The term “guardian” includes all court-appointed fiduciaries. These Ethical Standards are reflected throughout the National Guardianship Association Standards of Practice. Guardians should look to the Standards for guidance on ways to carry out these ethical principles, with specific reference to the highlighted standards.

RIGHTS
Bill of Rights for Adults Who Have a Guardian

You have the following rights at all times when you have a guardian:

Access to Justice Rights

1. You keep all rights that the court has not granted to your guardian.

2. You have the right to a lawyer who advocates for the outcome you want.

3. You have the right to be present and participate in all court hearings.

4. You have the right to let the court know your concerns or complaints about your guardianship.

5. You have the right to ask the court to review the need for your guardianship to change, continue or end and whether your guardian is right for you.

6. If there is a question about your capacity to exercise a specific right, you have the right to have a qualified person evaluate what you can do and whether to have some or all your rights restored.

7. You have the right to the support and accommodations you need to be able to effectively communicate with the court and to understand the court proceedings.

8. You have the right to have your rights explained to you in your preferred method of communication and in the language you choose.

Core Human Rights

9. You have the right to be treated with dignity and respect.

10. You have the right to be free from abuse, neglect, exploitation, and discrimination.

11. You have the right to remain as independent as you can.

12. You have the right to express and practice your own religious preferences.

13. You have the right to personal privacy.

14. You have the right to humane, safe, and sanitary living, learning, and working environments.

15. You have the right to sexual expression and to have your gender identity respected.

Decision-Making Rights

16. You have the right to a competent guardian who advocates for your goals, needs, and preferences and respects your desires, including medical treatment preferences, cultural practices, and religious beliefs.

17. You have the right to fully participate in all decisions, especially those affecting your care, where you live, your activities, and your social interactions, to the extent you wish to be involved and are able to be.

18. You have the right to receive necessary services and rehabilitation, within available resources, which protect your personal liberty and are provided within the least restrictive conditions.

19. You have a right to have your guardian prudently manage your resources.

20. You have the right to fully participate in decisions about how your property is managed, to the extent you wish to be involved and are able to be.

21. You have the right to keep confidential those matters which you wish to keep confidential unless that information is necessary to obtain services, to prevent abuse, neglect or exploitation, or to modify the guardianship order.

The court may restrict the following personal rights without delegating them to the guardian, but only with due process protections that ensure the decision is consistent with your preferences and values.

1. Apply for or maintain a driver’s license

2. Be educated

3. Be employed

4. Communicate and interact with others

5. Change your marital status

6. Maintain your reproductive health and procreation

7. Travel

8. Vote

The court may authorize your guardian to make decisions for the following rights on your behalf but only with due process protections that ensure the decision is consistent with your preferences and values.

1. Acquire the benefits, services and supports you need

2. Consent to or refuse your medical and mental health treatment

3. Determine where you live

4. Determine your social environment and social aspects of your personal life

5. File and defend lawsuits

6. Make contracts

7. Make gifts of your money

8. Manage your money and property

DUE PROCESS
Because establishing guardianship is a legal process that involves the removal of the individual’s rights, considerable due process protection often exists when the guardianship is established. The rights of the protected person include:
• Notice of all proceedings. 
• Representation by counsel.
• Attendance at all hearings/court proceedings. 
• Ability to compel, confront and cross examine all witnesses. 
• The right to present evidence. 
• Appeal to the determination of the court. 
• Presentation of a clear and convincing standard of proof. 
• The right to a jury trial.

Individual rights removed and due process rights may vary from state to state, the final authority is the state statues where the person with the incapacity lives. In any type of guardianship the court may limit the guardian’s authority. The guiding principle in all guardianship is that of least intrusive measures to assure as much autonomy as possible. The guardian’s authority is defined by the court and the guardian may not operate outside that authority. A guardian may be a family member or friend or a public or private entity appointed by the court.

GUARDIANSHIP OF THE PERSON
When the court appoints a guardian of the person, the guardian may have the following responsibilities: 
• Determine and monitor residence. 
• Consent to and monitor medical treatment.
• Consent and monitor non-medical services such as education and counseling.
• Consent and release of confidential information.
• Make end-of-life decisions.
• Act as representative payee. 
• Maximize independence in least restrictive manner. 
• Report to the court about the guardianship status at least annually. 

Guardianship of the Estate or Property
“Estate” is defined as real and personal property, tangible and intangible, and includes anything that may be the subject of ownership.

GUARDIAN OF THE ESTATE
When the court appoints a guardian of the estate, the guardian is assigned the following responsibilities:
• Marshall and protect assets.
• Obtain appraisals of property.
• Protect property and assets from loss. 
• Receive income for the estate. 
• Make appropriate disbursements. 
• Obtain court approval prior to selling any asset. 
• Report to the court or estate status.

ADDITIONAL RESOURCES
• National Center on Elder Abuse Fact Sheet - Role of Guardian Standards in Addressing Elder Abuse (PDF) (August 2020)
• National Guardianship Association - FAQs by Guardians About the COVID-19 Pandemic (August 2020)